Moline Timber Company v. Taylor

• Decision Date: 31 May 1920
• Docket Number: 29
• Citation: 222 S.W. 371,144 Ark. 317
• Parties: MOLINE TIMBER COMPANY v. TAYLOR
• Court: Arkansas Supreme Court

222 S.W. 371

144 Ark. 317

MOLINE TIMBER COMPANY v. TAYLOR

No. 29

Supreme Court of Arkansas

May 31, 1920

Appeal from Hempstead Circuit Court; James S. Steel, Judge, on exchange; modified and affirmed.

Judgment affirmed.

Gaughan & Sifford and T. D. Wynne, for appellant.

1. There was error in the instructions given for plaintiff and in refusing those asked for defendant. No. 1 for plaintiff was abstract and prejudicial. 87 Ark. 471, 243; 135 Id. 330. Instruction No. 2 for plaintiff ignores the testimony of the plaintiff himself that he understood that when the promise was made by the foreman to repair the machine that the repairs would be made by Monday morning.

2. The instruction as to the measure of damages was inherently incorrect. 65 Ark. 619.

3. It was error to refuse the instruction asked by defendant. The testimony presented an issue of fact for the jury. 31 Ark 684; 52 Id. 45; 14 R. C. L. 75; 126 S.W. 106; 31 L R. A. (N. S.) 1131; 8 S.W. 252.

4. The verdict is excessive. 193 S.W. 793; 106 Ark. 177; 89 Id. 522.

D. D Glover and Pace, Campbell & Davis, for appellee.

1. There is no error in the instructions given. 57 Ark. 203; 87 Id. 243; 54 Id. 151; 81 Id. 327; 90 Id. 326. Identical instructions have been approved by this court. 86 Ark. 507; 90 Id. 555; 130 Id. 542. It was for the jury to say under the evidence whether or not plaintiff was guilty of contributory negligence. 174 N.Y. 385; 100 U.S. 213.

2. The evidence shows that appellee was permitted by his father to do business for himself and receive his own wages, an implied emancipation, and entitled appellee to recover for the pecuniary loss resulting from his diminished earning capacity. 77 Ark. 35; 91 Id. 122; 16 L. R. A. 154; 86 S.W. 486. Instruction No. 2 was not specifically objected to. 110 Ark. 117; 103 Id. 584-9.

The verdict is not excessive. 170 N.W. 461; 48 App. D. C. 364.

SMITH, J. Mr. Justice HUMPHREYS dissents from that part of the opinion reducing the judgment.

OPINION

SMITH, J.

Appellee sustained an injury while operating a band cut-off saw in appellant's saw mill. The saw ran through a slot in a table having an iron apron. On top of the iron apron was a board fifteen or eighteen inches wide and six or seven feet long, through which the cut-off saw ran through a slit or groove corresponding with the slit or groove in the iron apron of the table, and appellee claims that his injury was due to the fact that the board on top of the table was defective, in that it had cupped up and had split for a distance of several inches, and that there was a broken guide above the table, which gave the saw too much play, and that on account of the broken condition of this guide the saw had cut out a space where it went through the table larger than it had originally been, thereby giving the saw more play and making it more dangerous to operate.

Appellee was only eighteen years old at the time of his injury, yet he was an experienced and skillful saw mill man, and had worked in various departments of the mill. He had been engaged at the table at which he sustained his injury only a few days, yet he discovered its dangerous condition, and reported that fact to Anderson, his foreman. Appellee testified that the attention of the foreman was called to the defective and dangerous condition under which the saw was being used on Saturday morning, and the foreman promised to repair the defect as soon as he could, and appellee relied upon this promise and continued in the service. On the following Monday morning appellee reported for duty, and went to work at the table in question, and between nine and ten o'clock that morning received the injury to compensate which this suit was brought. The injury resulted in the loss of appellee's little finger, and the one next to it, and the loss of half that hand down to the wrist joint.

Appellant saved exceptions to the instructions which were given, and also to the refusal of the court to give other instructions which it requested.

The first instruction given recited the alleged cause of negligence upon which a recovery was asked. It is conceded that the instruction correctly declared the law as an abstract proposition; but it is contended that it was error for the court to instruct with reference to the broken condition of the guide, for the reason that if the guide was in a defective condition, that fact had nothing to do with the injury.

But appellee testified that the absence of the guide had caused the saw itself to cut out a place possibly three-quarters of an inch wide at a place which was properly just a crack, and had cut a hole nearly twice as long as the saw was wide, and that the saw thus had a vibration or play which made its use dangerous. The operator of this saw stood in front of the table and pushed the dimension stuff he was sawing up against the saw, using both hands in doing so, and appellee was thus employed when he was injured. The objection that the instruction was abstract does not, therefore, appear to be well taken.

It is very earnestly insisted that the court should have told the jury that appellee assumed the risk of operating the machine and should have given a requested instruction to that effect, and that error was committed in so modifying the instruction as to submit that question to the jury. This instruction was based upon the premise that, even though the foreman had promised to repair the defect in the machine, yet if appellee understood these repairs were to be made before he resumed work on Monday morning, and that the repairs were not so made, and that he knew that the defect of which he had complained still existed when he went to work Monday, that he assumed the risk of operating the machine in its then existing condition.

The theory of the instruction as requested was that the time had expired during which appellee would be relieved of the assumption of risk on account of the promise to repair. It is true that appellee did say that he understood the repair would be made by Monday; but he did not say that the foreman had promised the repair would be made by Monday. His testimony on that point, when amplified, was that the foreman had promised to make the repair as soon as he could, and that he supposed it would be made by Monday morning; but he still expected the repairs would be made and went to work under that assumption. He also testified that the foreman "told me just as soon as he could get to it; that he was in a rush and he couldn't shut the machine down then; for me to go ahead, and he would do it just as soon as he could."

The modification of the instruction was not improper, because, without the modification, the instruction would have told the jury that there was no suspension of the assumption of risk beyond Monday morning, whereas if appellee was still relying upon the promise to repair. and had the right to do so, then it could not be said, as a matter of law, that there was a suspension of the assumption of risk, and the modification properly submitted that question of fact to the jury.

We have many cases discussing the effect of the master's promise to repair, but nowhere is the law stated more clearly than in the case of St. L., I. M. & S. Ry. Co. v Holman, 90 Ark. 555,...