A. L. Clark Lumber Co. v. St. Coner

• Decision Date: 23 January 1911
• Parties: A. L. CLARK LUMBER COMPANY v. ST. CONER
• Court: Arkansas Supreme Court

133 S.W. 1132

97 Ark. 358

A. L. CLARK LUMBER COMPANY v. ST. CONER

Supreme Court of Arkansas

January 23, 1911

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

Judgment affirmed.

McRae & Tompkins and D. L. McRae, for appellant.

1. The first instruction given is erroneous in that it places liability on appellant merely on proof that appellee's injury was caused by the unsafe scaffold. It makes appellant's liability depend upon the occurrence of the injury, and assumes disputed facts. The giving of subsequent instructions at appellant's request opposing this erroneous theory would not operate to cure the defects in this instruction. 65 Ark. 64; 76 Ark. 69-73. It is further erroneous in that it places no duty whatever upon appellee in respect to the care to be exercised by him in prosecuting his work. 90 Ark. 233. It was the duty of appellee to exercise ordinary care to discover the condition of the platform; and if he failed to exercise such care to discover an obvious and patent defect, he was guilty of contributory negligence. 92 Ark. 102-109; 89 Ark. 536.

2. The third instruction is erroneous, in allowing an assessment of damages, not only for pain and suffering caused by the injury, but also for probable future suffering. There is no proof to show future mental and physical pain. 90 Ark. 278; 44 L. R. A. 821. It is further erroneous in that it left the jury to speculate as to such future suffering, whereas they should have been confined to such pain and suffering as must necessarily result from the injury. 13 Cyc. 139; 3 Hutchinson on Carriers, § 805; 3 L. R. A. 504; 89 Wis. 371; 27 L R. A. 365; 75 Am. Dec. 264; 147 U.S. 571; 91 Wis. 637; 65 N.W.374; 75 C. C. A. 18; 61 C. C. A. 34; 83 C. C. A. 422.

3. The admission over appellant's objection of appellee's testimony to the effect that he went to Glenwood under promise that he would have the job of sawyer there was erroneous and prejudicial. The testimony was conjectural, and the damage sought to be proved thereby was speculative and remote, and its effect was to magnify appellee's injury. 149 U.S. 266; 86 Ga. 145; 24 L. R. A. (N. S.) 128.

W. P Feazel and McMillan & McMillan, for appellee.

1. This case falls within the rule requiring the master to exercise ordinary care to furnish the servant a reasonably safe place to work, and to use ordinary care to keep it safe. Where the place furnished proves dangerous, and causes injury to the servant, and the facts and circumstances show that this condition could have been discovered by the exercise of ordinary care, the jury have a right to infer that it was negligence on the part of the master in failing to discover the defect, or in failing to repair it after discovering it. 95 Ark. 447; 92 Ark. 355-6; 66 Vt. 331; 149 U.S. 368; 152 U.S. 684; 4 Thompson on Neg., 3803c; 1 Labatt on Master & Servant, 155-157; 82 Ark. 374-376; 87 Ark. 452; 95 Ark. 588; 87 Ark. 217; 90 Ark. 223; 95 Ark. 477.

2. When the first instruction, to which only a general objection was made below, is read in connection with the other instructions given, as, under the rule of this court, it will be, it will be seen that the jury could not have been misled. 89 Ark. 24; 89 Ark. 178; 87 Ark. 298; 93 Ark. 183; Id. 599; 87 Ark. 398; 65 Ark. 257; 73 Ark. 534.

3. Instructions 11 and 16 requested by appellant were properly refused, because they tell the jury that it was appellee's duty to search for latent defects. They would have been misleading. 90 Ark. 227-228.

4. The instruction on the measure of damages is correct. 80 Ark 528. Future pain is a proper element of damages. 65 Ark. 610; 60 Ark. 485; 35 Ark. 494, 495.

OPINION

HART, J.

Appellant prosecutes this appeal to reverse a judgment against it in favor of appellee for damages received by him while in the employ of appellant and alleged to have been sustained on account of the negligence of appellant.

In June, 1909, appellee was employed at the sawmill of appellant as off-bearer, that is he bore slabs away from the saw. The mill was shut down, and the mill foreman told appellee to lower the shafting. This was done by unscrewing the bars from the bolts and lifting the bolts off. While engaged in unscrewing the nuts, he stood on a plank two inches thick by ten inches wide. The plank was resting on the beams which cross the mill. The beams were twelve by twelve inches. The planks were on a level, were laid lengthwise, and were 14 feet from the floor. They were supposed to meet on the heavy timbers. Appellee had taken all the nuts off except one; and when he went to step on the plank that runs along for a man to walk on, it dropped out from under him, and appellee fell to the floor, his feet striking first. There was fine sawdust and filings on the plank which fell with appellee from about one-half to one inch thick. Appellee states that this was his first trip up to the slasher scaffold. That he did not put the planks there, and does not know who did. That he does not know how many were laid across the joists. That they were not nailed to the joists. Appellee states that he discovered this fact by examination made sometime after he was injured, but also states that it was not customary to nail the planks to the joists. That he was doing this work at the direction of his foreman.

The foreman also testified that he was present and directing appellee about his work when he fell. That he was on a scaffold up under the slasher unscrewing some nuts, and while so engaged the scaffold gave way, and he fell to the floor about 14 feet. That the plank which fell with him was already there and was not placed there by appellee. Appellee also adduced evidence tending to show the character and extent of his injuries, and that they were permanent. No complaint is made that the verdict is excessive, and it is not therefore necessary to more particularly describe the extent of appellee's injuries.

Appellant adduced evidence tending to show that the plank or scaffold which gave way with appellee and caused him to fall was not there when he began the work, but was placed there by himself.

It is first insisted by counsel for appellant that the judgment should be reversed because the court erred in giving the following instruction:

"While it is true that the plaintiff assumed all the risks that were ordinarily incident to the service in which he was engaged, yet he did not assume the risk of any negligence on the part of the defendant or employees. In the absence of knowledge on his part, the plaintiff had the right to presume that the defendant had performed the duties that devolved upon it. One of the duties imposed upon the defendant by law was to exercise ordinary care to provide a reasonably safe scaffold for the plaintiff to work on. A master is bound to exercise ordinary care in furnishing a safe place to his servant to work on, whether it is of a simple character, or whether it is dangerously situated. Therefore, if you find from the evidence that the plaintiff's injury was caused by the unsafe scaffold furnished by the defendant on which to work, and that plaintiff did not know of its unsafe condition, you will find for the plaintiff."

They contend that this instruction "ignores altogether the question of whether appellant was negligent in furnishing appellee an unsafe scaffold, and places liability on appellant merely on proof that appellee's injury was caused by the unsafe scaffold." That "it is framed in a recital form, so that the conclusion of the instruction is erroneous in assuming that the scaffold was unsafe." It will be noted, however, that the first part of the instruction told the jury that appellant was only required to exercise ordinary care to provide a reasonably safe scaffold for appellee to work on. Moreover, the court gave numerous instructions at the request of appellant, and in fact gave all instructions asked for by appellant except two, which will be noticed hereafter. In these instructions the jury was told that no presumption of negligence arose from the happening of the accident; that appellee must prove that his injury resulted from the negligence of the appellant, and that such negligence was the proximate cause of the injury; that the appellant only owed the duty to exercise ordinary care to provide a reasonably safe place for appellee to work. The doctrines of assumed risk and of contributory negligence were fully covered; the jury were told that if appellee placed the plank or scaffold which fell under him, he could not recover, and the instructions, when considered as a whole, covered every phase of the case, and were so complete that we can not see how the jury could have been misled by the language in the latter part of the instruction. There was only one disputed question of fact in the case, and that was whether the appellee provided his own scaffold, or whether it was already there when the foreman directed him to unscrew the nuts. From the instructions given at the request of appellant, it is perfectly apparent that, had the court's attention been directly called to the defect in the latter part of the instruction, such defect would have been corrected.

In the case of St. Louis, I. M. & S. Ry. Co. v Rogers, 93 Ark. 564, 126 S.W. 375, the court recognized the rule of this court that where instructions are conflicting and it is impossible for an appellate court to tell which of them the jury followed, the judgment should be reversed, but said: "There are, however, cases, as we conceive, not inconsistent with this rule, where we have held that the law of the case can not be stated in one paragraph or instruction, and that, though the instructions given may be apparently conflicting, if from the language used or the relation which the instructions are...