Malvern Lumber Company v. Sweeney

• Decision Date: 21 December 1914
• Docket Number: 76
• Parties: MALVERN LUMBER COMPANY v. SWEENEY
• Court: Arkansas Supreme Court

172 S.W. 821

116 Ark. 56

MALVERN LUMBER COMPANY v. SWEENEY

No. 76

Supreme Court of Arkansas

December 21, 1914

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; reversed.

Judgment reversed, and cause dismissed.

Wynne & Harrison and Henry Berger, for appellant.

The court ought to have directed a verdict for the appellant as requested. There was a total failure of proof to establish the fact of an injury. Under the proof in the case the jury could not have arrived at a verdict in favor of the plaintiff except through indulgence in speculation, conjecture or surmise. 3 Bailey on Personal Injury (2 ed.), 2136; Id. 2135; 119 Mich. 640; 143 Mich. 379; 106 N.W 117; 145 Mo. 316; 76 Ia. 744; 181 F. 91; 126 P. 960; 56 Ill.App. 578; 103 Va. 64; 93 S.W. 868; 90 S.W. 977; 79 Ark 437; 179 U.S. 658; 109 Ark. 206-214; 116 Wis. 31.

John C Ross, for appellee.

There was positive proof of the fact that the deceased was injured, and the proof further shows that appellant was guilty of gross negligence which was the direct cause of the injury. 105 Ark. 402.

While there is evidence upon which the jury might have based a finding that the deceased came to his death from cancer or ulcer, yet there is also evidence which justified the jury in finding that the exciting, proximate cause of his death was the sudden, violent jerk and wrench of his body which ruptured a blood vessel from which hemorrhage almost immediately set up. Notwithstanding a person may be suffering from a latent disease such as cancer of the stomach, from which he might have died at some future time, yet, if he receives an injury which sets in motion a chain of causes that result in death sooner than he would otherwise have died, there is liability for his death. 106 Ark. 91; 91 Ark. 343. This court has permitted the verdicts of juries to stand in cases much closer on the facts than is the case here. See, 103 Ark. 61; 107 Ark. 476; 77 Ark. 434-436; 100 Ark. 207; 105 Ark. 374.

OPINION

KIRBY, J.

This appeal is brought from a judgment for damages for an alleged personal injury, resulting in the death of appellee's intestate. He was working for the appellant company at the time of the alleged injury in trucking lumber to the planer. The lumber was loaded on a frame, which was on two wheels, constituting a truck, and one man stood at the end of the lumber behind and kept it in balance and helped to push, while the other, the deceased in this instance, rolled one of the wheels by pushing it along to the planer, the floor of which was an inch and a half higher than the runway adjoining it, and to enable the helpers to more easily push the truck over this raise, a plank about an inch thick and ten feet long was usually kept against the edge of the rise in the planer floor. When the truck deceased was helping to push reached this rise, the plank had been moved away from against it and one wheel of the truck struck the rise first, causing it to stop.

Appellant contends that it caused a severe jerk of the deceased, who was rolling the wheel that did not strike the obstruction. The man at the end of the lumber who was keeping it balanced, said it was the business of the employees trucking the lumber to put a plank up against the edge of the planer floor to better enable them to roll the lumber up, and that he did not notice that the plank was not up against the rise until after the wheel struck the obstruction and the truck stopped. He said that deceased was in a better position to see whether the plank was in place than he was, and that it was his duty also to notice the condition and remedy it. He testified further that there was no severe jolt or jerk of the truck when it struck the rise in the floor, that he did not notice any at all, and also that deceased made no complaint of any jolt or jerk, or of being injured at the time. It is true he answered "Yes, sir," when asked if he didn't remember in giving a statement in the case saying, "When we run the buggy against the offset, it caused a considerable jerk." Shortly after deceased went to work at the re-saw, and in probably twenty minutes thereafter complained of feeling bad, and went home, and died within a month and a half. The testimony of the physicians tended strongly to show that he was afflicted with cancer of the stomach, and had been for some time, and that his death was due to that.

Two witnesses who were familiar with the trucking of lumber and the trucks used by appellant company, stated that if one of the trucks heavily loaded was pushed rapidly against the rise in the floor, one wheel striking before the other, that the tendency would be to jerk the other wheel and the man who was pushing it with sufficient violence maybe to produce a severe injury. No one saw the deceased when the wheel struck the rise in the floor, the man at the end of the lumber being behind and on the other side of it from him, and it does not appear that he had hold of the wheel at the time.

Appellant only contends here that the court erred in refusing to direct a verdict for it, and we agree with this contention. There is no testimony...