Moline Timber Company v. McClure

• Citation: 266 S.W. 301,166 Ark. 364
• Decision Date: 08 December 1924
• Docket Number: 32
• Parties: MOLINE TIMBER COMPANY v. MCCLURE
• Court: Supreme Court of Arkansas

266 S.W. 301

166 Ark. 364

MOLINE TIMBER COMPANY v. MCCLURE

No. 32

Supreme Court of Arkansas

December 8, 1924

Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge affirmed.

Judgment affirmed.

Henry Berger and T. D. Wynne, for appellant.

The duty of the master to provide his servants a safe place in which to work does not attach where the place becomes dangerous in the progress of the work, either necessarily or from the manner in which the work is done. 73 F. 970; Labatt Master & Servant, vol. 3, p. 3140; 19 L. R. A. (N. S.) 345; 14 C. C. A. 492; 49 C. C. A. 347; 76 Ark. 69; 95 Ark. 560; 88 Ark. 292; 33 L. R. A. (N. S.) 223; 173 Pa. 162. Appellee could have continued to use the ladders supplied him or he could have built a scaffold. The method used by him was of his own adoption, and he therefore assumed the risks and dangers incident thereto. 122 Ark. 533; 93 Ark. 140; 108 Ark 377. Appellee knew that the boards being used had knots in them, and he assumed the risk from their use. 97 Ark. 486; 57 Ark. 503; 67 Ark. 209; 79 Ark. 20; 82 Ark. 11; 95 Ark. 560. There was no compulsion on appellee that he do the work without a scaffold, and, if he knew and appreciated the danger from doing the work without such appliance, he must be deemed to have assumed the risk. 188 S.W. 549. The facts did not warrant the submission of the case to a jury. 76 Ark. 69; 93 Ark. 140; 88 Ark. 292.

D. D. Glover, for appellee.

This was not a case where the work became more dangerous as it progressed, and the cases cited by appellant on that point do not apply. Where a servant is working in a place of danger, it is the master's duty to adopt such reasonable precaution to provide for his safety as a reasonably prudent man would have considered sufficient for his own safety under the same circumstances. 81 Ark. 592; 80 Ark. 260; 91 Ark. 341; 87 Ark. 217; 105 Ark. 392; 88 Ark. 292. The servant does not assume the risk if there is any negligence on the part of the master. 90 Ark. 223; 79 Ark. 20; 98 Ark. 340. The servant is justified in going ahead with the work under the master's direction unless he realizes the danger to which he is exposed. 95 Ark. 292; 87 Ark. 296; 98 Ark. 228; 102 Ark. 640.

OPINION

MCCULLOCH, C. J.

The plaintiff, E. N. McClure, received personal injuries while he was at work as a carpenter in the service of the defendant, Moline Timber Company, and he instituted this action to recover damages. An eight-penny nail which plaintiff was attempting to drive through a piece of lumber flew out when struck by the hammer and pierced one of plaintiff's eyes, and the injury was so severe that the eye had to be entirely removed. The plaintiff not only lost his eyesight, in one eye, but the sight of the other eye was greatly impaired and he suffered great pain. The jury awarded damages for an amount which is not claimed to be excessive.

Plaintiff claims that he is not an experienced carpenter, and had been working for defendant in another capacity, but was called on to do this kind of work in assisting one of the foremen in partitioning off a section of defendant's dry-shed; that he and the foreman were engaged in boarding up the gable end of the section partitioned off, which was at an elevation of about six feet above the floor of the shed, and in doing the work he was required to stand on a piece of timber two by six in size, to which the bottom end of the plank was to be nailed; that he requested the foreman to build a scaffold to stand on instead of standing on the narrow piece of timber, but that the foreman declined to permit the scaffold to be built, and directed plaintiff to stand on the narrow piece of timber and nail the plank thereto. Plaintiff testified in support of his claim, and explained to the jury how the injury occurred. He stated that a scaffold could have been built out of three pieces of timber in a very short time, and that he could safely have stood on the scaffold to nail on the plank, but that, in standing on the narrow piece of timber, as required by his foreman, he could not get a fair lick at the nail being driven, and had to swing his body out as far as possible and lay his head against the rafter, and, while nailing, put one hand through the crack between rafter and the roof in order to hold the nail, and that on this account he hit the nail a slanting lick, which caused it to fly out of place and strike him in the eye. He testified also that the foreman handed up a timber that had a knot in it at the place where the nail was to be put through, and that he could not see the knot plainly where he was standing.

Negligence of the defendant is charged in failing, through its foreman, to provide a safe place to work--a scaffold--and also in furnishing a defective hammer with a worn face. Plaintiff also testified at the trial with reference to the condition of the hammer and pleaded that the worn face was partly the cause of his failure to strike the nail a direct blow so as to drive it in.

The principal contention for reversal is that the testimony is not sufficient to sustain the verdict.

There is a sharp conflict in the testimony on the question whether or not plaintiff was working under the immediate direction and supervision of the foreman or whether he was merely working in conjunction with a fellow-servant. Plaintiff testified that he was working under the immediate supervision and direction of Joe Mason, who was a foreman over him, but defendant introduced testimony to the effect that Mason was not a foreman, and that the two men were assigned to this work as fellow-servants engaged in the same service.

Learned counsel for defendant invoke the rule, established by decisions of this court and by other authorities, that, where the conditions under which a servant is put to work are constantly changing so as to increase or diminish his safety it is the servant's duty to make the working place safe and that no duty in that regard rests upon the master. That rule is well established by decisions of this court. Grayson-McLeod Lbr. Co. v. Carter, 76 Ark. 69, 88 S.W. 597; Murch Bros. Cons. Co. v. Hays, 88 Ark. 292, 114 S.W. 697; Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 124 S.W. 1048; Fordyce Lbr. Co. v. Lynn, 108 Ark. 377, 158 S.W. 501; Sheldon Handle Co. v. Williams, 122 Ark. 552, 184 S.W. 43. That doctrine is an exception to the general rule that the master owes his servant the duty to exercise ordinary care to make the working place and appliances with which to work reasonably safe. Of course, where the duty is delegated to the servant himself to make his own working place and appliances safe or to determine the sufficiency of the appliances, there is no duty on the part of the master, and the servant assumes the risk of any danger arising from the use of the working place and the appliances and material. Sheldon Handle Co. v. Williams, supra. According...