M. E. Gillioz, Inc. v. Lancaster

• Decision Date: 21 February 1938
• Docket Number: 4-4958
• Parties: M. E. GILLIOZ, INC., v. LANCASTER
• Court: Arkansas Supreme Court

113 S.W.2d 709

195 Ark. 688

M. E. GILLIOZ, INC., v. LANCASTER

4-4958

Supreme Court of Arkansas

February 21, 1938

Appeal from Saline Circuit Court; H. B. Means, Judge; reversed and dismissed.

Judgment reversed and cause remanded.

Buzbee Harrison, Buzbee & Wright, for appellant.

McDaniel McCray & Crow, for appellee.

OPINION

DONHAM, J.

Appellee, H. M. Lancaster, brought suit in the Saline circuit court alleging that he was injured while employed by the appellant, M. E. Gillioz, Inc., as the result of appellant's negligence, in that the appellant failed to use ordinary care to furnish him a reasonably safe place in which to work. At the time appellee received his injury he was engaged in dragging logs and piling them on the site of the reservoir of the Little Rock waterworks project on the Alum Fork of Saline River in the north part of Saline county, using his own team of mules for that purpose. The specific negligence alleged is as follows: "Said injury was received by reason of defendant's negligence in failing and refusing to provide plaintiff with a reasonably safe place in which to work, by allowing snags and limbs to remain on the logs which he was required to skid, and by allowing brush and rubbish to accumulate on the ground and cover the stumps where plaintiff was required to work."

It was shown in evidence that on March 25, 1937, while engaged in dragging and piling logs at the site of said waterworks project, appellee hitched his team to a log that had a limb on it fifteen to eighteen inches in length. While dragging the log, it struck a stump, the limb coming in contact with the stump in such manner as to cause the end of the log to be thrown around and hit appellee, breaking one of the bones of his leg. It will be noted that appellee alleged in his complaint that brush had been allowed to accumulate on the ground and cover stumps where he was engaged in the work of dragging and piling said logs. In describing the manner in which he received his injuries, appellee testified: "On the 25th day of March of this year I was skidding logs with my own team. I was hired for this work by the defendant. I hitched to a log that had a limb on it about fifteen inches long, and there was a stump out in front of the log with some brush over it so that I couldn't see the stump, and when this limb on the log hit this stump the other end of the log flew around and hit me on the leg and knocked me down and broke this little bone in my leg. I could not see the stump for the brush that covered it. When this snag hit the stump it threw the other end of the log around."

Appellee further testified: "I was employed on the team crew that was helping on the clearing job for the Little Rock water project. My job was to skid out logs among those stumps. Where I could find a place ten or twelve feet away from a stump I would skid the logs and bunch them together like you were going to load them on a truck."

He further testified: "I have been a farmer most of my life and hauled logs between those times when I would not have any work to do at home, when I was not gathering or making a crop. Farming and logging have been my work. There were a number of stumps around the scene where I was working. I was working by myself and I was free to choose any route that I wanted to travel in clearing these logs. I worked my own team."

He further testified: "Brush was not scattered in small bunches but was picked up and piled in heaps but this particular brush was some that they just failed to pick up and I did not see the stump. The stump was six or eight inches high. The log was some twelve to fourteen inches in diameter and twelve feet in length. Those stumps that were not to be pulled out were about six to eight inches high. This area where I had been working had been pretty heavily wooded and the practice was to leave small stumps as they were."

Other witnesses testified that Lancaster was first put to clearing the site for the reservoir; then he was put to work with his team logging, as he was supposed to be a good logger. One witness, H. J. Doty, testified: "Mr. Lancaster's duty with reference to handling these logs was to bunch them together--he said he had done lots of that work. He informed me that he had, and I told him to go ahead and do it in his own way. To pick out his own place to work and to do it in his own way and take his own time. After he had assembled a number of these logs in a central spot selected by him the piling crew would come behind and pile them up so they would burn. The smaller logs and the rotten logs were the ones that were to be burned. The brush was piled and after that it was burned."

The last-named witness was the superintendent of the appellant corporation.

The jury returned a small verdict for the plaintiff, appellee here, same being for the sum of only $ 500. If the appellant is liable for appellee's injuries, this is a small sum to compensate therefor.

The question to be decided by this court is whether the trial court should have directed a verdict for appellant: At the close of the testimony on the part of appellee, appellant moved the court to direct the jury to return a verdict in its favor: This request was refused and exceptions were saved. At the close of the evidence in the whole case, appellant asked the court to give its requested instruction No. 1, which instruction was as follows: "You are instructed to return a verdict for the defendant, M. E. Gillioz, Inc." This request was refused, to which refusal of the court appellant saved exception.

Appellee sought to recover, as stated, on the ground that appellant had failed to use ordinary care to furnish him a reasonably safe place in which to work. It is alleged that the place was made unsafe by reason of the fact that a limb fifteen to eighteen inches in length had been left on one of the logs which appellee attempted to drag and pile and that brush had been left unpiled, or had been permitted to accumulate on the ground, so as to obscure the presence of a stump against which the log was dragged, the limb which had been left on the log striking the stump in such manner as to cause the log to be thrown around and strike appellee on the leg, resulting in his injury as shown in evidence.

In determining whether the court committed error in refusing to direct a verdict for appellant, it is proper to consider two questions.

Was there a duty on the part of appellant to use care to furnish appellee a reasonably safe place in which to work?

Did appellee assume the risk of his employment so as to preclude recovery for the injury received?

In the case of Cybur Lumber Co. v. Erkhart, 118 Miss. 401, 79 So. 235, Erkhart, an employee of said lumber company, was injured while engaged as a tong man operating a skidder in an open forest. In the skidding operations, a cable being used had come in contact with a small tree, causing it to break about ten feet above the ground. The top of the tree thereupon fell over on the ground and the trunk still rested upon the stump. Later, on the same day, in taking down the skidder to move it to another place, the trunk of the tree slipped off its stump and fell on Erkhart and broke his leg. In passing on the merits of the case, the Supreme Court of Mississippi said: "But on the merits plaintiff's case must fail, and the judgment appealed from must be reversed. The sole ground of negligence complained of is the alleged failure of the defendant company to furnish plaintiff with a reasonably safe place in which to work. There is no question but that this duty of the master to furnish employees a reasonably safe place to work is a continuing, nondelegable duty, frequently recognized and enforced by our courts. But this doctrine cannot be invoked as a basis of alleged negligence in the present case. We are not confronted with a case where the employee is assigned to work in any kind of building or structure, or at machinery that is at all stationary. The controlling duties of the plaintiff here placed him in the open pine forests of South Mississippi, where general lumbering is being done, and his duties as a tong man carried him from log to log, and place to place, over a wide area. The very work of 'snaking' and bunching sawlogs in the forest by the use of a skidder was inherently dangerous. . . . The breaking of the bay tree by the steel cable several hours previous to the accident resulting in injury to plaintiff was a very natural occurrence and incident to the character of work being done by the crew. . . . The danger to the servant in this case is manifestly a transitory peril which the master could not foresee or provide against."

In this case, the court further said: "If a large sawmill corporation had devolved upon it the duty of following its servants into the forest and securing each of them against injuries from falling trees, limbs, or other accidents in the woods, then in all logging operations the master would become an absolute insurer of the safety of such employees. Their very work carries them from place to place as they fell, gather, and haul logs, and the hazard of an employee in any particular spot or place is necessarily temporary and transitory. Surely the master is not required to make safe the broad acres of woods and see to it that employees of the lumber company are not hurt by defective, broken, or falling trees."

In this case, the court further said: "There is a vital distinction between those cases in which the place itself is constantly shifting or changing and those cases in which the position of the servant is stationary."

As stated by Mr. Labatt: "The rule that it is the duty of a master to exercise ordinary care to provide a reasonably safe place of work for...