Park Hotel Co. v. Lockhart
| Decision Date | 27 October 1894 |
| Citation | 28 S.W. 23 |
| Parties | PARK HOTEL CO. v. LOCKHART.<SMALL><SUP>1</SUP></SMALL> |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Hot Springs county; Alexander M. Duffie, Judge.
Action by Cora Lockhart against the Park Hotel Company to recover for injuries sustained while employed by defendant to run a "mangle" in its laundry. Plaintiff had judgment, and defendant appeals. Reversed.
Rose, Hemingway & Rose and C. V. Teague, for appellant. Martin & Murphy, for appellee.
Statement.
This is an action originally instituted in the Garland circuit court on the 1st day of September, 1891, against the appellant hotel company as defendant, by the appellee, Cora Lockhart, as plaintiff, for personal injuries, and damages laid at the sum of $25,000. On the 10th of December, 1891, on application of the plaintiff, the venue was changed to the circuit court of Saline county, and at the March term, 1892, of the Saline circuit court, on application of the defendant, the venue was changed to the circuit court of Hot Springs county, and the transcript was filed in the latter court August 1, 1892, and the cause was heard on the 9th of August, 1892, the day fixed in the last order for change of venue. Before going to trial, defendant filed motion for continuance, assigning several grounds, among them that the transcript had been received on the 30th day of July, 1892, by the clerk, — only two days before the commencement of the term on the 1st day of August, 1892, upon which day it was filed; that Mary Mongovan and Cosby, witnesses on behalf of the defendant, for whose attendance due diligence had been used, were absent, their testimony being material to the defense, the same being set out in full as required by statute, and the application being otherwise in form. The application for continuance was overruled, and exceptions taken, and the trial proceeded, resulting in a verdict for the plaintiff for the sum of $8,000. Defendant filed its motion to set aside the verdict and for new trial, which is as follows, to wit: (1) "The verdict and judgment should be set aside and new trial granted herein, because the court erred in refusing to postpone trial of this case until the next term of this court, and in forcing the defendant to a trial of the cause at the present term of this court, the transcript on change of venue not having been filed as much as ten days before the first day of this term." (2) "Because the court erred in overruling the motion of defendant, filed at the present term of the court, for a postponement and continuance of this cause until the next term of this court." (3) "Because the court erred in permitting, over the objections of defendant, the witness Jim Brandon to testify on behalf of the plaintiff, the said witness having admitted on the stand that he had been convicted of the crime of burglary, and sentenced to the penitentiary by the state of Arkansas." (4) "Because the court erred in admitting as testimony on behalf of the plaintiff the American Tables of Expectancy of Life, and refusing to exclude such testimony from the consideration of the jury." (5) "Because the court erred in refusing instructions Nos. 2, 4, 5a, 8, and 14, asked by the defendant to be given to the jury for their consideration in considering the case, and as instructing them on the law of the case." (6) "Also the court erred in not giving as part of the instructions to the jury, as requested by the defendant, the syllabus in the case of Oil Co. v. Hale (determined by the supreme court of Arkansas in May, 1892), as appearing in the Southwestern Reporter (volume 19, p. 600), which instructions, as asked by the defendant, include the entire syllabus (numbers 1, 2, and 3) of said case on page 600 of volume 19, Southwestern Reporter, all of which the court refused." (7) "Because the court, over the objections of the defendant, erred in giving instructions to the jury, as the law of the case, Nos. 1, 2, 3, 4, 5, 6, and 7 on behalf of plaintiff herein, to which the defendant at the time excepted. (8) "Because the court erred in instructing the jury as to the law of the case." (9) "Because the excessive amount of damages were awarded by the jury under the influence of passion or prejudice." (10) "Because the amount of damages assessed by the jury in their verdict were excessive and too large and not warranted by the evidence." (11) "Because the verdict of the jury and the judgment of the court are contrary to the law and the evidence." (12) "Because the verdict of the jury and the judgment of the court are contrary to the law and the evidence." (13) "Because the verdict of the jury is not supported by the evidence and contrary to the law and evidence of the case." A remittitur of $2,000 was entered by direction of the court, when the motion for new trial was presented.
Abstract.
The contention of plaintiff is that the machine at which she was required to work, at the time of the injury complained of, was out of repair to such an extent as to render it unusually dangerous, and this was known to defendant, and that the defendant had not used reasonable care in the keeping of said machine in repair, and that the bad condition of the machine was the immediate cause of her injury; and further, that she was a young and inexperienced person in the business in which she was called upon to labor, and that defendant was guilty of a want of reasonable care in failing to properly warn and instruct her with reference to her duties and the condition and workings of the machine. This is the basis of her claim for damages, and it is only necessary to call attention to so much of the evidence as may sustain or controvert the allegations and counter allegations and denials before we come to consider the extent of the injury complained of. An intelligible description of the machine in this case, known as a "mangle," as gathered from the testimony of witnesses, and cuts exhibited, would much shorten this abstract, but a verbal description that would be readily understood is almost an impossibility. Therefore much must necessarily be left to our otherwise acquired knowledge of such machines. We gather from the testimony that the "mangle" in question is a machine used by laundrymen for pressing and smoothing linen and similar clothes, — a process answering to that familiarly known as "ironing." From the testimony adduced we make the following necessarily imperfect description of the machine which caused the injury complained of in this case: With the exception of the apron in front and the table in the rear, the machine is of iron and steel. The operating part is supported by legs at either end, and stoutly braced in either direction. Above the apron in front and the table in the rear, three metal cylinders, arranged horizontally one above another, are fixed on axles passing through the end supports, at one end terminating in cogwheels, and there working in a common cogwheel on that side of the machine, the latter being on an axle upon which are two bandwheels, still further to the left, the turning of one of which puts the mangle cylinders in motion, and the turning of the other bandwheel is loose on the axle, and therefore the machinery is not put in motion by it. These two bandwheels have exactly the same band surface and faces, and are placed as near to each other as can be, so that one may turn and the other stand still. The band that turns these wheels is connected with the steam motive power elsewhere situated. When it is desired to put the machine in motion, by pressing a treadle the band is thrown upon one of the bandwheels, called the "tight wheel," — that is, tight on the axle, — and when it is desired to stop the mangle rollers, by a similar process, the band is thrown to the loose wheel, or the one that does not turn the axle, but turns on it. The middle roller is raised or lowered by a screw near one end of the machine. The middle roller is a large cylinder, and when in effective use is heated to a high degree. The apron in front, according to one witness, was a little higher than the knees of a person standing by it. We judge from the testimony elsewhere that it is somewhat higher than this. The witness states that in dressing the mangle rollers one would have to tiptoe, — that is, reach forward over the apron. The table in the rear is considerably higher than the apron, and seems to be a sort of box or trough, rather than a table. A man named John Kensel, at the time of the injury, was a stationary engineer, and in charge of all the machinery in the Park Hotel. It was his business to "fix the machinery," and, we take it, it was his business to superintend and control the operation of all the machinery, and to keep the same in proper running order. A Mrs. Marceau was in immediate control of the work at the mangle and the laborers working there. These laborers seemed to have been women and girls, such as the plaintiff, who, at the time she was injured, was about 17 years old (probably younger), and was getting $15 per month wages and her board and lodging. It seems that without any orders to do so, or any special warning not to do so, these girls were in the habit of getting upon the apron to dress the mangle rollers. This was the position of the plaintiff when she was injured, and she had been working about the mangle 11 days; but it is not shown that she had ever dressed the mangle before, unless we reach that conclusion by mere inference. As to the manner in which the injury was received we cannot better explain it than quote the testimony of the plaintiff as copied in her abstract, to wit: ...
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