Nashville Lumber Co. v. Busbee

Decision Date05 June 1911
Citation139 S.W. 301,100 Ark. 76
CourtArkansas Supreme Court

Appeal from Howard Circuit Court; James S. Steel, Judge; affirmed.


Appellant owned and operated a box factory in the town of Nashville Arkansas. It is situated within 200 feet of one of the public streets and in close proximity to one of the residence sections of said town. The structure of the box factory was two stories high, the upper story being used to manufacture box material and the lower or ground floor being used to manufacture various kinds of handles, and also to house the machinery necessary to operate both departments of the factory. The box factory occupied about six acres. The factory was bounded on the west by a number of residences the company's general office, and its stave mill; on the south by the dry shed. To the cast and north there were 200 feet of "clear or fire spaces," on which there was nothing except the machine on which the injury occurred and a few pieces of waste lumber. Beginning 14 feet east of the east wall of the box factory, 24 inches from the ground there was a box or trough, about 12 inches by 12 inches, that extended into and through the building to the west end thereof, rising gradually in that distance, about 18 inches. In this trough the waste from the upper story falls, which is carried to a burner or furnace on the west side of the building by a drag chain that works in the bottom of the trough, and dumped into the furnace. This is an endless chain, on which are cleats that drag the waste wood, etc., to the furnace on the west side of the factory. When the chain gets to the furnace, it turns back in the direction from whence it came, and goes back to the starting point under the trough and revolves on the sprocket wheel or cog wheel which caused the injury. This wheel is made fast to a line shaft that sets in two posts at the cast end of the trough. This chain is supposed to empty the trash it drags through the trough into the furnace on the west side of the factory, but a great deal of it hangs to the chain and is carried back under the bottom of the trough to the sprocket wheel at the east side of the building, and is deposited on the ground as it goes over said wheel.

For some time prior to the injury boys were in the habit of congregating at the box factory for the purpose of play and to get waste wood or kindling. There were several signs put up on the premises prohibiting people from trespassing on the premises and warning them about machinery being dangerous one was inside the box factory, one on the engine room door and one upstairs. Except in this manner, it was not shown that any objections were made to the children going on the outside of the box factory where the injury occurred, and there were no obstructions to their so going. The sprocket wheel and chain were not inclosed. On the second floor where the box material is manufactured, they used wire and twine strings with which to bind the material when finished into bales. A good many of these twine strings went into this trough with the other trash and waste from the upper story and became fastened to the chain and went the rounds with it. On the day of the accident (and about ten minutes before), the deceased boy, Mack Busbee, passed one Frank Flowers, going in the direction of the box factory. He (Flowers) did not see the boy any more until he heard him scream, and as he looked around he saw the boy caught in the wheel and go over with the wheel and lodge against the end of the trough. He ran to him, but, not being able to extricate him, he ran to the engine room and had the machinery stopped. When this machine was stopped, it was found that the child's arm was wrapped around the line shaft of the wheel one and one-half times like a rope, that the arm was broken in three places and practically pulled from the boy's body; he was lying on his back up against the end of the trough with the chain on top of him drawing across his shoulder, while the prongs or cogs of the wheel were grinding away his back. He was conscious, and talked to his father and others who came to his rescue, and lived 30 minutes after the accident occurred. It was also shown by the evidence, that waste wood and trash would sometimes accumulate on the ground at this sprocket wheel to such an extent as to almost hide the wheel.

This suit was brought by appellee as administrator of the estate of Mack Busbee, deceased. The complaint states:

"That on March 31, 1910, plaintiff was duly appointed administrator of the estate of Mack Busbee, deceased, by the probate court of Howard County. That deceased died on February 10, 1910, intestate, and plaintiff is now his duly qualified administrator. That the defendant lumber company is a corporation doing business at Nashville, Arkansas, and operates a saw and planing mill at such place. That it carelessly and negligently left exposed to the danger of all persons unacquainted with such machinery a certain chain, cog wheel and drag-roller, whereby Mack Busbee, a minor of 8 years, was caught and dragged by said wheel and chain, and his shoulder and other parts of his body was so mangled and bruised that death resulted."

"Plaintiff further says that the defendant knew that this machinery was exposed and dangerous, and that little children were permitted to play around said machinery on its premises. That strings were hanging to said chain which were attractive to children, and that they carelessly and negligently for many days prior to the injury permitted the deceased to come on the yards and play about their mill and machinery. That it was the custom of the decedent, together with other boys of like age, to go there and pick up trash and pieces of wood that were being carried off by this chain and take the same to their homes. That decedent was a boy 8 years old, and in good health and sound of mind. That he suffered from said injuries great physical pain and mental anguish for some hours before he died. That it was because of the negligence and carelessness of the said Nashville Lumber Company that the said Mack Busbee, the decedent, was permitted to go near to and to be caught by said machinery, and that his death, physical pain and mental anguish were all caused by such negligence, and for the death, physical pain and mental anguish so suffered and endured plaintiff claims damages in the sum of $ 15,000."

The answer was in separate paragraphs, from one to twelve, inclusive. It is unnecessary to set them all out. Appellant denied all allegations of negligence. It set up that Mack Busbee had been warned to stay away from the mill and machinery, and had many times been driven away from the premises; that he was a trespasser. It set up contributory negligence of Mack Busbee in entering the premises after being warned to keep off. It also pleaded contributory negligence on the part of his father, the appellee, as follows:

"8. Defendant states that the plaintiff, A. L. Busbee, is the father of Mack Busbee, deceased, and the heir and only heir of his estate, and that any judgment rendered in favor of the plaintiff as administrator would be for his benefit, and that said estate owed no debts.

"9. The plaintiff was guilty of gross negligence in permitting the decedent to come upon its premises or grounds, and in permitting him to play about the premises or machinery at any time, because he knew it was against the rules of the company for any one to come upon or around the premises without permission of the officers of the defendant.

"10. The plaintiff had been notified by the employees to keep decedent off the premises because no children were permitted to play there, and, after being notified to keep said boy from said premises, negligently permitted decedent to enter the premises of the defendant, and that his injury was received by the carelessness of plaintiff and the contributory negligence of the decedent."

In paragraph 11 1/2 appellant states that the decedent was a trespasser upon the premises of the defendant, and that it owed him no duty except not to wantonly injure him after his peril was discovered by the defendant or its employees, and that neither the defendant nor its employees knew that he was in a place of danger until the injury occurred.

In paragraph 12 appellant alleged:

"That defendant's premises where the injury occurred were more than 300 yards from any street or public road, were inclosed, and all persons who were not in the employment of the defendant were warned to keep off said premises, and that said chain, cog wheel or drag-roller was not exposed, and was not dangerous in the manner in which it was constructed to any one being around, by or close to it."

Appellee demurred to the answer wherein it pleaded the negligence of the plaintiff and the interest of the plaintiff as is found in paragraphs 8, 9 and 10, because the same do not state facts sufficient to constitute a defense. The court sustained the demurrer to all these paragraphs setting up the negligence of the parents as a defense to this action, to which ruling of the court the defendant excepted.

Errors are assigned in the exclusion of certain testimony, and in the giving and refusing of instructions. The jury returned a verdict in favor of appellee. Judgment was rendered accordingly, and this appeal followed. Other facts stated in opinion.


Sain & Sain and T. D. Crawford, for appellant.

1. Appellee is the father and sole heir of the decedent, and any judgment recovered by him as administrator would be for his own benefit. His negligence in permitting decedent to go upon appellant's premises, after being warned to keep him away, bars a recovery. 36 Ark. 41; 79 N.Y. 254; 154 Ill....

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