Ozan Lumber Co. v. Bryan

• Decision Date: 26 April 1909
• Parties: OZAN LUMBER COMPANY v. BRYAN
• Court: Arkansas Supreme Court

119 S.W. 73

90 Ark. 223

OZAN LUMBER COMPANY v. BRYAN

Supreme Court of Arkansas

April 26, 1909

Appeal from Nevada Circuit Court; Jacob M. Carter, Judge; affirmed.

Judgment affirmed.

McRae & Tompkins, for appellant.

1. Appellee assumed the risk. This is no case of youthful inexperience, but of a mature man engaged in a work which required no experience nor instruction, who had the fullest opportunity to observe, bye the exercise of his senses, the runways upon which he worked. An employee is bound to take notice of obvious defects. 82 Ark. 11; 60 Ark. 438; 65 Ark 98; 77 Ark. 367; 60 L. R. A. 589; 10 L. R. A. 513. He was guilty of contributory negligence as shown by the evidence.

2. It was error to refuse the second instruction requested by appellant. The master is not an insurer of the servant's safety, nor a guarantor that the tools and instrumentalities furnished him may not prove defective. Moreover, the master is presumed to have performed his duty by furnishing safe and suitable appliances for the performance of his work. When this presumption is overcome by positive evidence, the further presumption arises that the master had no notice of the defect and was not negligently ignorant of it. 35 Ark 602; 44 Ark. 529.

H. B McKenzie and William H. Arnold, for appellee.

1. It was not appellee's duty to inspect the premises to make discovery of latent defects in the platform. That duty rested on the master as also the duty to inspect the premises and keep them in reasonably safe condition. 82 Ark. 502; 114 S.W. 223; 83 Ark. 318; 82 Ark. 37; 67 Ark. 295; 51 Ark. 467; 54 Ark. 289; 111 S.W. 257; 162 F. 750; 112 S.W. 390. For distinction between assumption of risk and contributory negligence, see 114 S.W. 722; 77 Ark. 367. In determining whether the servant assumed the risk, the test is not whether he exercised ordinary care to discover defects, but whether they were known to him or were so patent as to be ordinarily observable by him. 160 F. 160. See also 196 U.S. 51; 211 U.S. 459. The rule that the servant assumes all the ordinary risks of the service presupposes that the master will perform all duties resting upon him for the servant's protection. 160 F. 826. And, unless the danger is so patent as to be ordinarily observable by the servant, the court ought not to instruct the jury as a matter of law to return a verdict for the defendant. 112 S.W. 740; 76 Ark. 520; 56 Ark. 210.

2. The second instruction requested was properly refused, being fully covered by other instructions given. 114 S.W. 208.

OPINION

FRAUENTHAL, J.

This is a suit for damages, on account of personal injuries, instituted by the plaintiff, Joseph A. Bryan, against the defendant, Ozan Lumber Company.

About the 16th day of July, 1907, the defendant employed the plaintiff as a lumber stacker on its yard in the town of Prescott, Arkansas. The defendant owns and operates a large saw mill and planer at this place. From its saw mill to its planer and dry kilns it has constructed platforms or runways upon which lumber is transported upon trucks or lumber buggies from point to point within its plant. These platforms are from eight to ten feet high and eighteen feet wide, and are from 100 to 200 yards in length; they are built on timbers and floored with plank. As the lumber is manufactured, it is stacked along the sides of these platforms from the ground up.

On July 31, 1907, a foreman of defendant directed the plaintiff to go upon one of these runways or platforms for the purpose of counting the lumber stacked upon each side. After he had counted the lumber in a stack, the plaintiff, for the purpose of passing on to another stack, made a step or two backward, and his foot broke through the platform, from which he sustained an injury on his leg between the ankle and knee. He continued to work for several days, although his legs gave him pain, and then quit the work on account of the injured leg; and, the pain still continuing, in about two weeks he consulted doctors who pronounced that plaintiff had inflammation of the veins in the front part of his leg, in medical nomenclature called phlebitis, and that in their opinion this was caused by said injury.

In substance, these are the allegations of the complaint in which plaintiff asks for damages. The defendant denied every material allegation of the complaint, and pleaded contributory negligence and the assumption of risk on the part of the plaintiff.

Upon a trial of the case, a verdict for $ 1,000 was returned in favor of plaintiff, from which defendant prosecutes this appeal.

It is urged by the defendant that the undisputed facts of this case show that the injury that the plaintiff received was due only to one of the risks which are ordinarily incident to the service, and which therefore he assumed; and that the facts also show that the injury was due to his own negligence. The defendant therefore asked in the lower court, and now insists that he was entitled to, a peremptory instruction in his favor.

The evidence tended to prove the allegations set out in the complaint and referred to above. It also tended to prove that the plank of the platform, through which plaintiff broke and was partly precipitated, was decayed and rotten, and was on this occasion covered with bark, so that the defect and danger was not obvious and patent to the plaintiff. While the plaintiff had been in the service for about two weeks, this was the first time that he had been down or on this runway or part of the platform. The foreman of defendant had noticed that there were holes and defects in the platform at this place some short time before, and by proper inspection by defendant its unsafe condition could have been discovered; and the defendant had not repaired the platform or placed it in safe condition.

While it is true that the plaintiff assumed all the risks that were ordinarily incident to this service in which he was engaged, yet he did not assume the risk of any negligence on the part of the defendant. In the absence of knowledge on his part, the plaintiff had the right to presume that the defendant had performed the duties that devolved on it. One of the duties imposed upon the defendant by the law was to exercise ordinary care to provide a reasonably safe platform for the plaintiff to work on. A master is bound to exercise ordinary care in furnishing a safe place to his servant to work on, whether it is of a simple character or whether it is dangerously situated. 1 Labatt on Master and Servant, §§ 7-14.

Now, this duty on the part of the master is continuous; it is not sufficient that the place is safe today, if it may be unsafe on some future day; it is necessary for the master to exercise ordinary care to see that the place is safe on all days. It therefore follows that this duty cannot be adequately performed unless the instrumentality of place to work in is subjected to reasonable examination for the purpose of discovering defects that are not patent and obvious. As is said by this court in the case of St. Louis, Iron Mountain & Southern Railway Co. v. Holmes, 88 Ark. 181, 114 S.W. 221, "it is the duty of the master to exercise ordinary care to provide his servants with a reasonably safe place in which to work and reasonably safe appliances with which to work. This duty also includes one of making reasonable inspection to see that the place and appliances are safe." 1 Labatt on Master & Servant, § 7; 26 Cyc. 1182, 1177; St. Louis, I. M. & S. Ry. Co. v. Rice, 51 Ark. 467, 11 S.W. 699; St. Louis, I. M. & S. Ry. Co. v. Brown, 67 Ark. 295, 54 S.W. 865; Choctaw, O. & G. Rd. Co. v. Jones, 77 Ark. 367, 92 S.W. 244.

It is the duty of the master to exercise ordinary care in discovering defects and in repairing them; and he is liable if he fails to exercise that care tested by the circumstances surrounding the character of the employment and the facts of the case. Bryant Lumber Co. v. Stastney, 87 Ark. 321, 112 S.W. 740; Ultima Thule, Ark. & Miss. Ry. Co. v. Calhoun, 83 Ark. 318, 103 S.W. 726.

In this case the proximate cause of the injury was the...