McGee v. Smitherman

• Citation: 65 S.W. 461,69 Ark. 632
• Parties: MCGEE v. SMITHERMAN
• Decision Date: 16 November 1901
• Court: Supreme Court of Arkansas

65 S.W. 461

69 Ark. 632

MCGEE v. SMITHERMAN

Supreme Court of Arkansas

November 16, 1901

Appeal from Pulaski Circuit Court, JOSEPH W. MARTIN, Judge.

Judgment affirmed.

J. J Williams and J. A. Watkins, for appellants.

No one can recover for an injury which he brought upon himself. 41 Ark. 542; 45 Ark. 318; 46 Ark. 388; 36 Ark. 371; 36 Ark. 41; 62 Ark. 245; 56 Ark. 271. The engineer and appellee were fellow servants. The appellee cannot recover if his injuries were caused by the engineer. 39 Ark. 21; 42 Ark. 417; 61 Ark 302.

Marshall & Coffman, for appellee.

J. J Williams and J. A. Watkins, in reply, for appellants.

The instruction as to measure of damage is erroneous in that it does not limit the amount of recovery. 61 Mo. 19; 57 Mo.App. 335; 20 Ill. 449; 4 Col. 353; 10 Col. 535; 19 Mo.App. 107; 39 Ill. 164; 60 Ark. 481. If the instruction is erroneous, the case must be reversed. 99 Mo. 347; 39 Hun. 107; 57 Iowa 23; 64 Cal. 272; 10 Pa.St. 145. The language of the instruction clearly imports a requirement by the court, which is error. 79 Ill. 594. The instruction gives the jury a roving commission to assess damages. 8 Am. & Eng. Enc. Law, 651; 177 Pa.St. 1; 24 S.W. 299; 15 Ind.App. 69. Loss of capacity must be considered. 87 Texas, 539; 8 Am. & Eng. Enc. Law, 651; 98 Ala. 378; 79 Texas, 371. The right of recovery should have been limited to appellee's expectancy. 65 Ark. 627; 51 Ark. 515; 60 Ark. 560; 57 Ark. 321.

Marshall & Coffman, for appellee, in reply.

Instruction No. 2 states the law. 58 Ark. 136; 70 Md. 328; 76 Mo. 408; 97 Mo. 253; 104 Ind. 429; 72 Ind. 202; 67 Cal. 319. The jury were not misled by the instruction. 39 Ill. 164; 4 Col. 363; 35 Ark. 494; 37 Ark. 552; 48 Ark. 344; 60 Ark. 538; 57 Ark. 314; 67 Ark. 209; 118 U.S. 546; 5 Am. & Eng. Enc. Law (1st Ed.), 41.

OPINION

BATTLE, J.

This action was brought by Smitherman against McGee, Kahman & Co. to recover the damages he sustained by reason of personal injuries which he received while in defendant's employment. He alleged, in his complaint, that the defendants were, on the 6th day of June, 1899, bridge contractors, and had a contract with the Little Rock Bridge Company to construct what is known as the Choctaw and Memphis Bridge across the Arkansas river at Little Rock, Ark.; that on that day he was in the employment of defendants as a carpenter, and engaged in building caissons for the construction of the bridge, under the control, superintendence and direction of H. P. Lee, who was then employed by the defendants, and was acting as foreman for them; that on that day he was directed by Lee, as foreman, to aid in the elevation of several large pieces of timber, and placing them on top of one of the caissons as deck plates, by fastening derrick hooks in the middle of each and holding one end thereof until it was sufficiently elevated to be swung around and let down upon the caisson; that, after a number of plates had been raised and placed, plaintiff, according to the directions of Lee, fastened the derrick hooks upon one of the plates, which was twelve inches square and twenty feet long, and held on to the end thereof while the same was being elevated, and that, before the same had reached a sufficient height for him to turn it loose, so that it might be let down upon top of the caisson, the foreman, well knowing the dangerous and exposed position of the plaintiff, negligently gave a signal to the engineer, who had control of the engine running the derrick, to slacken the rope by which said plate was suspended, which he did, causing the said plate to fall suddenly upon plaintiff, without giving him any time or opportunity to protect himself, crushing and breaking his left leg at and below the knew in several places and making a cripple of him for life, also injuring him about the breast and other parts of the body; that he has, on account of his injuries, suffered great mental and bodily pain, and has lost much valuable time, and incurred large expenses for medical and surgical attention and other expenses growing out of said injuries, and he is permanently disabled from earning a living by his labor, to his damage in the sum of $ 10,000.

The defendants, answering, said: "It is true that they compose a firm doing business under the firm name and style of McGee, Kahman & Co., as contractors, and on the 6th day of June, 1899, were engaged in constructing what is known as the Choctaw and Memphis Bridge across the Arkansas river at Little Rock, Ark. It is true that on said day plaintiff was in their employ as a carpenter, and engaged in the construction of caissons for such bridge, but deny that he was under the control, superintendence and direction of H. P. Lee, who, they admit, was one of the foremen employed by the defendants, and further deny that said H. P. Lee was acting for them in the construction of said caissons. They admit that it was part of plaintiff's duties, and he was directed by said H. P. Lee, to aid in the elevation of several large pieces of timber intended to be placed on top of one of said caissosns, as derrick plates, by fastening the hooks in the middle of each; but it is not true that he was directed by said H. P. Lee, or any one else acting for defendants, nor was it part of his duties, to hold one end of said timbers until they were sufficiently elevated to be swung around and let down upon said caissons. It is true that, after a number of said timbers had been thus raised and placed, plaintiff, as was his duty, fastened the derrick hooks upon one of said plates or timbers; but they deny that he held on to the end thereof while the same was being elevated, and that before the same had reached a sufficient height for him to turn it loose, so that it might be let down upon the top of the caisson, the foreman, well knowing the dangerous and exposed position of plaintiff, negligently gave a signal to the engineer who had control of the engine running said derrick to slacken the rope by which said plate was suspended, which he did, causing the said plate to fall suddenly upon plaintiff without giving him any time or opportunity to protect himself, crushing and breaking his left leg at and below the knee in several places, and making a cripple of him for life, also injuring him about the breast and other parts of the body. Defendants say that if plaintiff received injuries from the falling of or coming in contact with said timber, at the time alleged in his said complaint, said injuries were the result of his own negligence in disobeying his duties and the instructions of his employers, and but for his contributory negligence said injuries would not have resulted to him. They deny that, on account of said injuries, plaintiff suffered great mental and bodily pain and lost much valuable time and incurred large expenses for medical and surgical attention and other expenses growing out of said injuries, or that he is permanently disabled from earning a living by his labor, to his damage in the sum of $ 10,000 or any other amount."

Considerable evidence was adduced by both parties, tending to sustain the allegations in the pleadings of the party adducing the same as to negligence, and proving that the plaintiff received the injuries as alleged in his complaint.

The jury, having heard the evidence and the instructions of the court, returned a verdict in favor of plaintiff in the sum of $ 1,850; and the defendants appealed. They (the appellants) insist that this verdict should be set aside for two reasons: First. Because the court erred in refusing the grant their third request for instructions to the jury. Second. Because the court erred in giving the second instruction given at the instance of appellee.

The third request is as follows: "3. If you find from the evidence that plaintiff received the injuries complained of by reason of disobeying the instructions or warnings of his superior foreman, which he heard, or by giving proper...