Owosso Mfg. Co. v. Drennan, 166.

• Decision Date: 13 October 1930
• Docket Number: No. 166.,166.
• Citation: 31 S.W.2d 762
• Parties: OWOSSO MFG. CO. v. DRENNAN.
• Court: Arkansas Supreme Court

31 S.W.2d 762

OWOSSO MFG. CO. v. DRENNAN.

No. 166.

Supreme Court of Arkansas.

October 13, 1930.

Rehearing Denied November 10, 1930.

Appeal from Circuit Court, Saline County; T. E. Toler, Judge.

Action by Ada May Drennan, administratrix of the estate of J. J. Drennan, deceased, against the Owosso Manufacturing Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Buzbee, Pugh & Harrison, of Little Rock, for appellant.

Quinn Glover and Tom W. Campbell, both of Little Rock, for appellee.

MEHAFFY, J.

The appellant, Owosso Manufacturing Company, is a corporation engaged in the manufacture and sale of lumber and other wood products, with its plant and principal place of business located at Benton, Saline county, Ark. In connection with its manufacturing plant, it operates a veneer mill. Adjacent to the veneer department is a logyard, where gum logs and other hardwood logs are unloaded from flat cars and stacked on the yards preparatory to being transferred to a concrete vat, containing a hot solution in which the logs are soaked before they are worked up into veneer material. The walls of the vat are something like 2½ feet above the level of the ground. The logs are handled by means of a stationary derrick with a swinging boom or hoist from which a wire cable equipped with tongs for hooking logs is suspended. The logs are brought to the mill on cars and unloaded from the cars by means of the derrick and placed on the millyard in stacks about 15 feet high and 40 or 50 feet long. In transferring the logs to the vat, the tongs are hooked into each end of the log, the log is picked up by the hoist and deposited in the vat, and the tongs are then released. One man operates the hoist by means of steam power, another man hooks the tongs into the logs, and another man releases the tongs when the log is put into the vat.

Appellee's intestate, J. J. Drennan, at the time of his injury and death, was employed by appellant as a tong hooker. His duties were to hook the tongs into the logs, and this required his being on and about the log pile, going from one side of the pile to the other, for the purpose of hooking the tongs into each end of the log. On the 5th day of December, 1929, Drennan was engaged in his duties hooking tongs into logs, and, while standing on the ground, between the log pile and the concrete vat, where he had gone to get hold of the tongs to fasten them into a log, in the performance of his duty, he was crushed by a heavy log rolling down from the stack and pinning him against the vat. An employee named Mason was working with Drennan; Mason's duties being to unhook the tongs from the logs after they had been put into the vat. The regular way that Drennan and Mason had been accustomed to take the logs from the stack and put them in the vat was to take the logs from the top of the stack first and gradually work down to the bottom. On the morning Drennan was injured, his foreman, Meyers, told Drennan and Mason to clean up the logs along the vat, to clean that up and get that back out of the way, make a passageway next to the vat. The logs were piled down against the vat wall so that there was no passage between the vat and the pile of logs, and Meyers, the foreman, directed them to make a passageway next to the vat, between the vat and the stack of logs; he told them to clear up the logs next to the vat. While Drennan and Mason were engaged in obedience to the orders of the foreman, Meyers, and had taken up five or six logs right next to the vat, as the foreman had told them to do, had taken the logs next to the vat on the ground so there was a space on the ground to walk between the stack of logs and the vat, the logs fell on Drennan, crushed him, and killed him. The log pinned him to the vat, and then a second log rolled down and struck him across the head and shoulders. When the first log struck him, he only halloed "Oh"; as the second log rolled down on him, he crumpled over the first log and threw up his hands, and the second log crushed him on the first log. This happened about five or ten minutes after Meyers had given the order to remove the logs next to the vat. After the log had fallen on Drennan, the tongs were hooked into the logs, and they were raised off him. Drennan was then carried to the south side and laid down; he was alive and breathing. They put him in a car and started to town with him, and he was still alive at that time. He was alive and breathing when they met the ambulance. This was about a mile from the plant. The logs that were stacked on Wednesday before Thanksgiving were stacked crooked. They were stacking them late in the afternoon; the boss was in a hurry, wanted the cars unloaded that night, and in letting them down they would do it quickly, and in that way they were piled crooked and uneven.

Drennan was 30 years of age. When Drennan was not engaged at public work, he farmed; he was a good worker, a good citizen and sober man; he had worked off and on for the Owosso Manufacturing Company for something like seven years; he worked part of the time each year; part of the time he hooked tongs and part of the time he was handling lumber; did various kinds of work for six or seven years. He left surviving him a widow and three small children. He supported his wife and children during his lifetime, was in good health, a man of good character, treated his wife and children well, had no expensive habits, and spent his earnings on his family. He had bought and paid for his home. His widow was 27 years old.

The appellant did not introduce any testimony in the case, and the evidence of Mason, the only person who was with Drennan at the time of his death, testified to the foreman, Meyers, giving the order, and testified that at the time of his injury Drennan was engaged in the work in obedience to the orders of Meyers. Meyers did not testify, and the evidence of the order having been given and Drennan obeying it is without dispute.

The case was submitted to the jury, and a verdict of $15,000 was rendered, and judgment was entered for that amount.

This appeal is prosecuted to reverse the judgment of the circuit court.

Appellant insists that the testimony was not sufficient to support a finding of negligence against it, and that the undisputed testimony presents a clear case of assumption of risk arising from obvious working conditions and obvious dangers to which appellee's intestate voluntarily exposed himself. The case of Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232, 19 S. W. 600, is cited and relied on. In that case the question of obeying the order of a superior was not involved. The court announced the general rule as to assumed risk, and reversed the case because the trial court gave instructions which this court said were ambiguous and misleading. The question involved in this case was not discussed. The next case appellant cites is the case of Choctaw, O. & G. R. R. Co. v. Jones, 77 Ark. 367, 92 S. W. 244, 248, 4 L. R. A. (N. S.) 837, 7 Ann. Cas. 430. In that case this court said, after discussing the general rule in England and this country:...