Michigan-Arkansas Lumber Co. v. Bullington

CourtSupreme Court of Arkansas
Citation152 S.W. 999,106 Ark. 25
PartiesMICHIGAN-ARKANSAS LUMBER COMPANY v. BULLINGTON
Decision Date09 December 1912

Appeal from Craighead Circuit Court, Jonesboro District; Frank Smith, Judge; affirmed.

Judgment affirmed.

J. R Turney, for appellant.

1. As a matter of law the appellant was not guilty of negligence in the construction of the frame work and the location of the saw therein. The instrumentalities furnished were safe for the use for which they were intended, since it is undisputed that the only purpose of the doorway to the enclosure was to enable the saws to be placed on or taken off its wheels, and that this was never done and in fact could not be done until after the saw stopped. The proximate cause of the injury was not the construction of the enclosure nor the location of the saw therein, but the improper use thereof by appellee in entering the enclosure while the saw was in motion Labatt Master & Servant, 73, 84; Id. 59; 57 Ark. 76; 97 Ark. 188.

Appellants duty to warn appellee was not violated. The evidence shows that he had been fully instructed how to use the instrumentalities. Moreover he had actual knowledge of the conditions, had seen and appreciated the same. 34 Ark. 632; 79 Ark. 68; 15 S.W. 141; 70 Ark. 386. Knowledge of the conditions will be imputed to appellee from the fact that they were open and obvious to him from the time of and during the continuation of his employment, and at the time of the injury. Labatt, Master & Servant, 238; 82 Ark. 538; 97 Ark 489; Thompson on Neg., 4063; 57 Ark. 76; 23 L. R. A. (N. S.) 296; 47 N.E. 506; 40 N.E. 180; 68 N.E. 219.

2. Since the risk was one ordinarily incident to the business, and was open, obvious and fully ascertainable, appellee assumed the risk when he accepted the employment. 91 N.E. 300; 82 Ark. 17; 161 Mass. 153.

3. Appellee was guilty of contributory negligence, in failing to make such examination as would have revealed to him the conditions, if he was ignorant thereof, and in entering the enclosure while the saw was in motion. 182 F. 42; 93 Ark. 484; 90 Ark. 387; 41 N.W. 976; 101 N.W. 700; 78 N.W. 570. He was not exculpated by an order of the master. Labatt, Master & Servant, 1257; 80 N.W. 589; 36 N.E. 854; 105 N.W. 246; 61 N.E. 810.

4. The court erred in permitting Bullington to testify, he having been shown by an exemplification of a Missouri record to have been convicted of highway robbery. Kirby's Dig., § 3095. The facts show a conviction within the meaning of the statute. Blackstone, 362, 364, 375; Bishop, Statutory Crimes, 348; 2 Simm. 40; Wharton, Criminal Pleading, 435; Bishop, Criminal Procedure, 815; 45 Pa.St. 372; 5 F. 152; 66 P. 372. Conviction in Missouri disqualifies here. 10 N.H. 22; 3 Hawk. 393.

Lamb & Caraway, for appellee.

1. There is ample evidence to show that there was negligence in the construction of the mill about the band saw; not only so, but that the resultant danger was not open and obvious but was hidden and concealed and therefore was not a risk assumed by appellee. Appellant owed the positive duty to warn appellee of the danger, and all the more so for that he was inexperienced. 92 Ark. 102, 108-11; 82 Ark. 11, 16-17; Id. 555; 90 Ark. 407, 411-12; 91 Ark. 102, 106-7; 56 Ark. 192, 196-8; 27 Ark. Law Rep. 253; 84 Ark. 382, 387. Before the master can be relieved from liability the facts must not only show that the servant knew of the danger as a possible source or cause of injury, but also that he appreciated the nature and extent of the danger and knew how to avoid it. 90 Ark. 407; Id. 473; 76 Ark. 69, 73; 53 Ark. 117.

2. Appellee was not guilty of contributory negligence. 82 Ark. 11, 19; 53 Ark. 458; 97 Ark. 553.

3. Appellee was a competent witness in his own behalf. A verdict of a jury, or even a plea of guilty, not followed by a judgment of a court will not constitute a conviction. 86 Ark. 317, 321-2. The same rule prevails in Missouri. 48 S.W. 833. See also, 16 Am. & Eng. Enc. of L. 248. But a conviction in a foreign jurisdiction, if complete, does not render a witness incompetent here. It can only go to his credibility. 16 Am. & Eng. Enc. of L. 250.

MCCULLOCH, C. J. KIRBY, J., dissents. SMITH, J., not participating.

OPINION

MCCULLOCH, C. J.

The plaintiff, Herbert Bullington, sues his employer for damages by reason of the loss of his arm, alleged to have been caused by negligence of the employer in the operation of a sawmill where plaintiff was working. The sawing was done with a large band saw, and plaintiff was employed as an offbearer of lumber from the saw. He had been employed at the mill only five days, about half of which time he had worked out on the yards. His duties as offbearer were to take the lumber as it came from the saw and convey it away to be stacked. When the saw became dull, and it was necessary to remove it to be sharpened, plaintiff, with other laborers, was called to assist in removing it. There were two floors above the ground floor, where the saw carriage was operated, one of them called the main floor, and the other the floor of the filing room. There was wooden boxing around the saw, extending from above the carriage space, up through the two floors, and when the saw was removed it was lifted from the wheels and drawn up to the floor of the filing room. It usually required the services of several men on each of the two upper floors in order to remove the saw. They released it from the wheels, and then the men would take hold of it with their hands and draw it up. On the main floor there were two doors to the boxed space, one on each side, and on the inside there was a trapdoor or lid, to prevent the sawdust being thrown up by the return of the saw. In order to draw the saw up it was necessary to raise these lids. The doors were twenty-two and one-half inches, and the teeth of the saw extended out about two inches beyond the casing and inside the doorway. This left a clear space of a little less than twenty inches for the men to reach in the doorway to lift the lids. The occasion when plaintiff's injury occurred was the first time he had assisted at that place in removing the saws; the other time when he was called to do that work he went with other men up to the filing floor, where the situation was somewhat different. On this day, when the whistle blew, he was called with the others to assist in removing the saw, and started up to the filing room floor, when the foreman told him that there were enough men up there and directed him to go to the door of the main floor and raise the lid preparatory to changing the saws. He testified that he opened the door, and inserted his arm to raise the lid, when the teeth of the moving saw at the edge of the door caught his elbow and cut his arm off. He states that he did not know that the teeth of the saw projected into the doorway and did not see it when he inserted his arm--that when he opened the door sawdust flew up in his eyes. He stated that he had never had occasion to open the door before and did not know how the saw was situated, though he knew, of course, that the saw worked inside of the boxing. Negligence of the defendant is charged in placing the saw so that the teeth projected into the doorway, and also in failing to give the plaintiff warning of that precise situation and danger to one who opened the door for the purpose of raising the lid. The trial of the case resulted in a verdict in plaintiff's favor, assessing damages at the sum of $ 1,000.00, and the defendant appealed.

The first contention is, that the plaintiff was incompetent as a witness in his own behalf on account of conviction for an infamous crime in the State of Missouri, and that the court erred in allowing his testimony to be introduced. The record of a court of competent jurisdiction in the State of Missouri was introduced, showing that plaintiff was indicted and placed on trial for the crime of robbery, and that he was convicted by the jury, but the record does not show the rendition of a judgment of conviction by the court. There were attempts to show by oral testimony, on the one side, that the verdict of the jury had been set aside and a new trial granted and, on the other side, that the judgment had not been set aside but that the plaintiff was paroled upon his own good behavior.

The record itself, which is the sole evidence of the conviction fails to show any judgment. It is earnestly contended on behalf of defendant that it is...

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