Marcum v. Three States Lumber Company

• Decision Date: 26 October 1908
• Citation: 113 S.W. 357,88 Ark. 28
• Parties: MARCUM v. THREE STATES LUMBER COMPANY
• Court: Arkansas Supreme Court

113 S.W. 357

88 Ark. 28

MARCUM v. THREE STATES LUMBER COMPANY

Supreme Court of Arkansas

October 26, 1908

Appeal from Mississippi Circuit Court, Osceola District; Frank Smith, Judge; reversed.

STATEMENT BY THE COURT.

This is an action by James Marcum against the Three States Lumber Company to recover damages for breaking his leg on January 17, 1907, while in the employ of the company. The defendant company was at the time operating a steam log skidder, used for dragging or skidding logs from the woods to the railroad. The machine was made by the Clyde Iron Works, and consisted of a steam engine mounted on a flat car with a boom about 32 feet long at each end and extending in both directions, front and rear, at an angle of about 45 degrees, each of which stood directly over the railroad. It was about 32 feet from the engine to the end of each boom, and on the end of the boom was a pulley over which a steel cable worked. One end of the cable was attached to a drum near the engine, and it extended out over the pulley on the end of the boom. Attached to the other end of the cable was a pair of tongs, which weighed about 75 pounds. They were constructed on the principle of ice tongs. They were made of octagon steel six-sided like a rifle barrel, and were, except at the points, one and seven-eighths inches in diameter. They were sharp pointed for the purpose of being fastened to a log four or five inches from its end.

The machine was operated in this way: The tongs attached to the cable would be dragged into the woods, where the logs were by a horse. The tongs would be fastened on the end of the log by a man called a "hooker." The hooker would then signal the flagman, and he in turn would then flag the engineer, who would start the engine. The engine would wind up the cable on the drum like a spool of thread, and this winding of the cable would skid the log to the railroad. The tongs were so constructed that when in perfect condition the harder the engine would pull, the tighter the tongs would clutch the log. If, while skidding a log from the woods to the railroad, it should strike the root of a tree or other obstruction, the usual and customary way of releasing it was to unhook the cable from the ring in the end of the tongs place it around a stump or a tree standing a little to one side or the other of a straight line from the log to the engine, and then again hook the cable to the ring in the end of the tongs. Then, by the same process of signalling as before, the engine would be started, the log wrenched to one side and released from the obstruction.

When the Clyde Iron Works shipped this machinery to the defendant it sent along one Mr. Hall as an instructor, whose duty it was to teach the employees of the defendant company how to operate the machine. Plaintiff was an engineer by profession, and was placed in charge of the engine by defendant. Mr. Gibson, the general foreman of the defendant company, told him to do whatever Mr. Hall told him to do, to do it just like he told him to do it, and learn all about the business. About the fourth or fifth day after they commenced operating the machinery, Hall came to the plaintiff and told him that he would take his place on the engine for a while, and directed plaintiff to go into the woods, help the hookers hook logs awhile, and learn how it was done. He gave as a reason for this order that he thought from all he had heard that plaintiff would be made foreman of the crew.

On that morning they were running two lines of cables. Mr. Cannon was the hooker for one line, and Mr. Reed for the other. The tongs that Cannon was using were fastened to the cable with a clevis or hook, similar to a hook on a log chain. The hook on the cable that Reed was using had been almost straightened out the day before, and the cable was welded on the tongs. The tongs that Reed was using on that morning were sprung--that is, they were nearer straight than they should be--and on account of this defect they would sometimes slip from the end of the log, when the cable was being pulled, and jump a considerable distance, 35 or 40 feet. The fact that the tongs were sprung was known to the plaintiff at the time the injury was received. Either the day before or that morning the tongs had pulled out of a log; then it came across the end of the boom and struck the side of the cab of the engine, and knocked a hole in it as big as a five gallon keg. The cab was made out of seven-eighths inch pine lumber. At that time plaintiff was running the engine. He called the attention of Mr. Gibson to the accident, and told him some one would get killed or crippled with the tongs unless they were fixed. Mr. Gibson told the plaintiff to go ahead; that he would furnish new tongs or repair those in a day or two.

When Mr. Hall directed plaintiff to go out in the woods and assist in the hooking and skidding for awhile, he first went over on Cannon's line and saw him hook two or three logs. He then went over to Reed's line, and the first log they hooked after he arrived struck an oak tree that had been cut down, and the tongs slipped out. The oak tree was then cut out of the way, and, fastening the hooks in a new place, they started with the log again. They did not go far until the log struck a maple root. About 10 or 12 feet to the right of the cable, and about 35 feet from the end of the log, stood a stump. There was a man who rode a mule that drags the tongs back in the woods. Reed said, "We will have the rider to pull the line around the stump." Plaintiff said that he thought that Reed and himself could pull the line over it; so Reed and the plaintiff took hold of the cable with their hands, lifted it over to the right, and placed it behind the stump. As soon as the cable was placed behind the stump, without waiting for the signal to start, the engine began to pull the cable, and the plaintiff at the same time started to get out of the way. He had gone only a few feet when the tongs slipped from the end of the log and struck him, breaking his leg.

The plaintiff had worked around a sawmill a great many years. He had assisted in operating other makes of log loading machines. The plaintiff was the only witness examined at the trial, and the above is substantially his statement of how the injury occurred and the incidents connected with it. At the conclusion of his testimony, the court directed a verdict for the defendant, and plaintiff has appealed.

Judgment reversed and cause remanded.

J. T. Coston, for appellant.

1. The servant assumes the risks ordinarily incident to his employment. 92 S.W. 246. If a new risk arise on account of a defect in the machine, implement or appliance, the servant will not be deemed to have assumed the new risk, even after he discovers the defect, unless he is also aware of the danger; and not then unless the danger is so patent that a reasonably prudent person would not continue in the service. 92 S.W. 247. He will not be deemed to have assumed the new risk, if, after discovering the defect, he promptly complains to the master, and the latter promises to remedy the defect. 1 Labatt, Master & Servant, § 424; Id. p. 1198; 70 S.W. 606; 100 S.W. 744; 4 Thompson on Neg. § 4467; 47 A. 1018; 49 A. 1037; 8 So. 218; 58 N.E. 417; 36 N.E. 574; 29 S.W. 675; 59 N.W. 188; 53 N.E. 467; 100 U.S. 225.

2. When a log would meet an obstruction, and the cable be placed behind a stump for the purpose of releasing it, it had always been the custom not to start the machinery until the hookers had reached a place of safety. This custom was tantamount to a fixed rule of business. 1 Labatt on Master & Servant, 474. Appellant, being aware of the custom and believing that it would be followed in this instance, had a right to rely on its observance. There was therefore no imminent danger obvious to him, and no contributory negligence on his part. 92 S.W. 248; 100 S.W. 85; 10 S.W. 606; 77 S.W. 913; 107 S.W. 376; 1 Labatt on Master & Servant § 355; 68 N.W. 776.

3. Where the negligence of the principal and that of a fellow servant together produce an injury, the principal is liable. 99 F. 51; 203 U.S. 473; 106 U.S. 702; 67 Ark. 8; 4 Thompson on Neg. § 4858; 2 Labatt, M. & S. § 814; 3 N.E. 577-8; 21 N.E. 347; 42 P. 344; 67 F. 885; 25 N.E. 915. The defect in the tongs contributed to the injury, and appellee is liable, even though the negligence of a fellow servant also contributed to the happening of the accident. 61 N.W. 912; 24 S.E. 233; 138 Mass. 436.

W. J. Lamb and W. J. Orr, for appellee.

1. There was a total failure of proof that the condition of the tongs complained of caused the accident. "Where the evidence leaves material facts admitted and undisputed, and they are of such a conclusive character that the court could give effect to but one verdict, it is the duty of the court to direct a verdict." 131 F. 712; 150 U.S. 245; 152 U.S. 262; 113 U.S. 227; 139 U.S. 469; 39 Am. St. Rep. 264; 99 N.W. 827; 103 N.W. 1017; 137 F. 557; 128 F. 679; Id. 32. The record being entirely silent as to what caused the tongs to break loose from the log to which it was attached, and the burden being upon the appellant to show negligence on the part of appellee, the inference most favorable to the appellee from the undisputed evidence must be taken. 88 S.W. 988; 91 Mo.App. 539 and cases cited; 63 A. 204; 93 S.W. 869; 48 S.E. 509; 155 Mo. 382; 2 Am. St. 193; 15 Wall. 524; 47 Am. Rep. 566; 9 Am. & Eng. R. Cas. 445; 164 Mass. 257.

2. The proof without conflict shows that appellant fully appreciated the only danger incident to the use of the appliances furnished, knew more about them than the master, and hence assumed the risks incident to their use. 92 S.W. 244; 81 Ark 343; 56 Ark. 232; 114 N.W. 853. It is not the law that a complaint by the...