A. L. Clark Lumber Co. v. Johns

• Citation: 135 S.W. 892,98 Ark. 211
• Parties: A. L. CLARK LUMBER COMPANY v. JOHNS
• Decision Date: 13 March 1911
• Court: Arkansas Supreme Court

135 S.W. 892

98 Ark. 211

A. L. CLARK LUMBER COMPANY v. JOHNS

Supreme Court of Arkansas

March 13, 1911

Appeal from Pike Circuit Court; James S. Steel, Judge; affirmed.

Affirmed.

T. D Wynne and W. V. Tompkins, for appellant.

1. The court in permitting the plaintiff to introduce evidence to the effect that on the day before the accident occurred he had made complaint to the millwright, and the latter promised to repair the alleged defective condition of the cog and gearing, so as to make the same safe, thereby permitted a new issue to be injected into the case, and erred in refusing appellant a continuance in order to meet this proof. 67 Ark 142; 71 Ark. 197; 55 Ark. 568; 31 S.W. 401; 28 Tex. 241; 27 Tex. 455; 26 Tex. 95; 20 S.E. 494; 4 Enc. Pl. & Pr. 863.

2. A servant who knowingly consents to work in a place of danger will be held to have assumed the risk incident thereto. 68 Ark. 316; 65 Ark. 98; 77 Ark. 367; 95 Ark. 560; Labatt on Master & Servant, 259. Instructions 1 and 3 were erroneous. Whether or not appellee assumed the risk after the promise to make repairs, was a question to be determined by the jury. 71 Ark. 518; Id. 510. See also 1 Labatt, Master & Servant, § 425; 81 Ala. 200; 60 Am. Rep. 152; 187 Ill. 333.

3. The sixth instruction requested by appellant should have been given. Had it been given, the jury might have found that, notwithstanding the promise to repair, appellee was guilty of contributory negligence in failing to observe the patent dangers he was about to encounter.

4. The verdict is so excessive as to evidence passion and prejudice on the part of the jury.

W. P. Feazel, for appellee.

Appellee was properly permitted to testify to the fact of having complained to the millwright as to the condition of the cog, and the latter's promise to repair it. It was clearly admissible under the allegations of the complaint that the defendant knew of the defective condition and failed to repair it. A servant on entering upon the service of the master assumes only such risks as are ordinarily incident to the work--not extra or unusual risks, not those resulting from negligence of the master or other servants. 20 Am. St. Rep. 37; 40 Mich. 420. Moreover, the testimony as to the promise to repair was admissible in order to rebut testimony tending to show assumption of the risk and contributory negligence by appellee. Kirby's Dig. §§ 6091, 6098, 6108; 78 Cal. 430; 76 Ark. 525; 29 Ark. 386; 33 Ark. 737; 44 Ark. 293.

2. Appellant will not be heard to object to certain instructions without furnishing an abstract of all the instructions given by the trial court. 92 Ark. 245; 90 Ark. 163.

3. The verdict is not excessive.

OPINION

MCCULLOCH, C. J.

The plaintiff sues to recover damages on account of personal injuries received while working in the service of defendant, and alleges that the injuries were caused by negligence of the defendant in failing to provide a safe place for him to work.

He was employed by defendant to oil the machinery in the sawmill, and in performing his duties it was necessary for him to crawl under the log deck and along the line shaft upon which were placed cog wheels about two and a half feet apart, and these cog wheels were connected with other parts of the machinery which moved the rollers that carried lumber from the saws. All of the cog wheels save one were covered, and the cover of this had been broken off so that the cogs were exposed. While passing under the cog wheel, his clothing was caught in the gearing, and was wound up around his shoulders and neck, drawing him into the gearing so that the cogs ate into his neck and tore out flesh.

He alleged in his complaint that the defendant "had negligently left uncovered one of the cog wheels, and that the coupling which connected the other parts of the machinery with said cog wheels had been loosened to such an extent that it would fly upward; that the plaintiff, in performing his duties as oiler, had to pass underneath the floor of said sawmill upon a scaffold along the line shaft, and that, by reason of the construction of the premises where he was oiling, there was not sufficient light for him to see how to perform his duties."

The defendant denied the charge of negligence, and pleaded contributory negligence and assumption of risk. Plaintiff's testimony tended to sustain all the allegations of the complaint, and was sufficient to warrant a verdict in his favor. He also testified that the day before he was injured he made complaint to the two millwrights, Prewitt and Scott, about the defective condition of the machinery with respect to the broken covering and the exposed condition of the cog wheel, and that they promised to fix it the first time the mill was shut down. There was other testimony to the effect that it was the duty of the millwrights to keep the machinery in repair.

Defendant objected to the testimony as to the complaint to the millwrights and their promise to repair, on the ground that the pleadings contained no allegations of those facts. The court overruled the objection, and defendant asked for a continuance in order to procure the attendance of Prewitt, the other one, Scott, being present. The court denied the request for continuance. It is insisted now that the court erred in these rulings.

Assumption of risk by the plaintiff, being based on an implied contract, was a matter of defense to be pleaded by the defendant, and the plaintiff was not bound to anticipate in his complaint any defense which could be offered. It was only necessary for him to set forth the charge of negligence on which he relied for a recovery, and when the defense of assumed risk was brought forward he had the right to meet it with proof of facts which excluded the implication that he had agreed to assume the risk. "A complaint need not negative matters of defense." Rozell v. Chicago M. & L. Co., 76 Ark. 525, 89 S.W. 469.

It was therefore the duty of the defendant to prepare for the defense which it expected to offer and to anticipate any proof which the plaintiff might make in avoidance of the plea. No reply of the plaintiff was required under the Code. Kirby's Dig., § 6108.

The court gave the following instructions at plaintiff's request:

"1. You are instructed that it was the duty of the defendant in this case to exercise ordinary care in providing and furnishing the plaintiff with a reasonably safe place in which he was required to work and to exercise ordinary care in discovering and repairing defects in same, and the plaintiff, while acting in due care himself, had a right to presume that the defendant had discharged its duty in this respect; therefore if you believe from the evidence that the defendant had carelessly and negligently permitted its machinery where plaintiff was required to work to get out of repair, so as to make it more dangerous to the plaintiff while discharging his duties, and that the defendant or its foreman knew that said machinery was out of repair, or by the exercise of ordinary care could have known the same, and after said knowledge or notice it failed to repair same, and that the plaintiff while in the exercise of due care himself was thereby injured, you will find for the plaintiff.

"2. You are instructed that, while the plaintiff, by entering the services of the defendant as an oiler of its machinery assumed all the risks ordinarily incident to that employment, he did not assume the risks arising from the negligence of the master himself, or any one whom the master may see fit to intrust his superintending authority, unless it be further shown that he was aware of said negligence and appreciated the danger therefrom, to which he was thereby exposed.

"3. If you believe from the evidence that the plaintiff had notice or knowledge that the covering over the cogs in which he was caught and injured was out of repair, and that he thereafter continued in his work as such oiler without complaint, then he assumed the risks arising from the failure of the defendant to make such necessary and proper repairs as would remove the danger; but if you find that he made complaint to the defendant or its agent whose duty it was to keep defendant's machinery in repair, and that said agent told or promised him that he would make necessary and proper repairs on said machinery, and the plaintiff continued in his work, relying upon said promise, then you...