Ozark White Lime Co. v. Byrd

• Decision Date: 27 November 1911
• Citation: 141 S.W. 762,101 Ark. 117
• Parties: OZARK WHITE LIME CO. v. BYRD
• Court: Arkansas Supreme Court

141 S.W. 762

101 Ark. 117

OZARK WHITE LIME CO. v. BYRD

Supreme Court of Arkansas

November 27, 1911

Appeal from Benton Circuit Court; J. S. Staples, Judge; reversed.

Judgment reversed and cause remanded for new trial.

Read & McDonough, for appellant.

1. There is no allegation in the complaint, neither is there any evidence, that the company had any knowledge of any dangerous condition of the rock, nor that it was negligently ignorant of such dangerous condition, nor that an inspection by the company would have disclosed that it was about to fall. There is no testimony whatever to show how the rock fell what caused it to fall, whence it came, nor any evidence from which any such inference may be drawn. This is not a case where the law will supply the presumption of negligence from the happening of the accident, but the burden is on the plaintiff to show the negligence. 79 Ark. 437; Id 76, and cases cited at page 81; 82 Ark. 372; 87 Ark. 321; Id. 287; Id. 191; 88 Ark. 181; 89 Ark. 50; 92 Ark. 350; 103 Pac. (Wash.), 1119; 85 N.E. 728; 135 S.W 422; 113 P. 1123; 113 N.Y.S. 1018; 115 N.Y.S. 30; 47 So. 248.

2. There can be no recovery where the cause of the injury is a mere matter of conjecture. 181 F. 91 and cases cited; 2 Labatt, § 937.

Rice & Dickson, for appellee.

1. It is negligence for a master to direct a servant into a dangerous and unsafe place to work, without inspection or the exercise of reasonable care to furnish a safe place. In this case the jury had the right to consider the bluff and its surroundings, the blasting and its effect upon the rocks and soil, and to draw all reasonable inferences as to whether it was a safe place, and whether upon inspection the dangerous conditions could have been discovered and removed. And on appeal, in considering a peremptory instruction, the court will "consider as admitted all that the jury might infer from the evidence." 17 Am. St. Rep. 59. Not only is a corporation liable for injury sustained by a servant resulting from careless omission of duty or negligence of the employer, but the servant also has the right to act upon the presumption that the employer has discharged its duty with reference to providing safe appliances with which, and a safe place in which, to work. 93 Ark. 93; 87 Ark. 396; 56 Ark 206.

Where a master, having constructive notice of the danger and having failed to exercise reasonable care to make the place safe, assigns a servant to a place to work which subjects him to the dangers of being injured by falling rock or earth, the master is liable in damages to the servant if he is injured. 7 Am. & Eng. Ann. Cas. 302; 31 N.E. 638; 79 S.W. 290; 44 N.E. 876; 30 P. 692. Where a person uses or operates a dangerous agency, the happening of the accident is evidence, prima facie, of negligence. 89 Ark. 581; 78 Ark. 429; 63 S.W. 164; 82 Am. St. Rep. 630; Shearman & Redfield on Negligence, §§ 16, 18, 59.

OPINION

MCCULLOCH, C. J.

The plaintiff recovered judgment below against the defendant for damages on account of alleged injuries received while at work in defendant's service, and we are asked to reverse the judgment on the ground that the evidence was not legally sufficient to authorize the verdict. Defendant is a domestic corporation, and was, at the time of plaintiff's injury, engaged in operating a limekiln in Washington County, Arkansas. Plaintiff was employed by defendant as a wood-hauler, but late in the afternoon on a certain day he was taken from that work by the foreman and put to work assisting in laying a track along which the cars run from the rock quarry to the kiln. The face of the hillside had been blasted off so that there was a bluff 40 or 50 feet high, almost perpendicular, and tunnels were blasted into the face of this bluff in taking out rock. The track which plaintiff was assisting in laying ran along the surface of the ground at the foot of the bluff, and while he was at work, a rock, about the size of a gallon bucket, as the witnesses described it, fell or rolled down from somewhere above and struck him, inflicting a painful injury.

Plaintiff's right to an affirmance of his judgment depends entirely upon the force and effect to be given to his own testimony. After describing the blasted-off face of the hillside and the tunnels, he testified that he was at work helping to lay the track when the rock rolled down from above and struck him, and that the only warning he had was that somebody cried, "Lookout!" just before he was struck. He does not pretend to say where the rock came...