Pekin Stave & Manufacturing Company v. Ramey

• Citation: 147 S.W. 83,104 Ark. 1
• Parties: PEKIN STAVE & MANUFACTURING COMPANY v. RAMEY
• Decision Date: 06 May 1912
• Court: Supreme Court of Arkansas

147 S.W. 83

104 Ark. 1

PEKIN STAVE & MANUFACTURING COMPANY v. RAMEY

Supreme Court of Arkansas

May 6, 1912

Appeal from Van Buren Circuit Court; George W. Reed, Judge reversed.

Judgment reversed, and cause remanded.

T. D Wynne and Garner Fraser, for appellant.

1. The court erred in requiring attorneys to disclose by whom they were employed. The authority of a regularly licensed attorney is presumed, and he can only be required to show his authority upon an affidavit of the adverse party, showing substantial reasons why the interests of the adverse party are jeopardized. 1 Ark. 104; 2 Ark. 358; 40 Ark. 131; 159 Ala. 645, 650; 49 So. 255; 113 S.W. 618; 152 Ala. 243; 44 So 637; 126 Am. St. Rep. 30; 71 F. 924; Week on Attorneys, §§ 195, 196; 91 Mo. 207; 3 S.W. 860.

The court's error in requiring appellant's attorney to withdraw from the case was a denial of that right to appear by counsel which the law allows to every litigant. 29 Cal. 147; 87 Am. Dec. 164; 9 Wheat. 830; 1 Hempstead (Ark.) 43.

In permitting appellee's counsel to make statements in the presence of the jury that appellant had insurance in an indemnity company the court committed prejudicial error. The fact that the employer insured against loss was wholly immaterial. 162 Mass. 251; 38 N.E. 510; 80 Miss. 340; 31 So. 790; 9 Finch's Insurance Dig., 284; Labatt, Master & Servant, § 826; 90 Me. 369; 38 A. 333.

2. The second instruction errs in making it the absolute duty of appellant to provide the saw with a proper hood, as well as in ignoring the question of assumption of risk. 4 Thompson on Neg., §§ 4020, 4709; 41 F. 920; 119 Pa. 149; 13 A. 65; 59 Ark. 480, 481.

E. G. Mitchell and W. N. Ivie, for appellee.

1. Negligence is shown (1) because appellant's employee allowed the blocks to pile up against the saw when it was his admitted duty to keep them wheeled away. 100 Ark. 437. (2) Because appellant did not provide the machine with an apron or shield which would have prevented the blocks from piling up against the saw. 100 Ark. 437.

2. A general objection to the court's instructions is sufficient to call attention to the form or any particular language of the instruction. 98 Ark. 17, 211, 227, 425.

3. Rather than to retire from the case, it was the duty of the attorney to obey the order of the court and answer the question who employed him, whether the order was correct or not. At any rate the controversy between counsel for defendant and the court could not have prejudiced the appellant, since it did not pertain to the merits of the case. 75 Ark. 373. Appellee was within his rights in seeking to discover by whom the attorney was employed, to the end that he might be guided in the effort to select an unbiased jury. 99 Minn. 97; 9 Am. & Eng. Ann. Cases, 318; 100 A.D. 234; 91 N.Y.S. 895; 162 Mass. 252; 36 Col. 498; 37 Col. 432; Id. 431; 110 N.W. 577; 96 S.W. 530; 124 Wis. 554; 126 Wis. 224; 127 Wis. 332; 129 Wis. 98.

OPINION

FRAUENTHAL, J.

This is an action instituted by the plaintiff, A. H. Ramey, to recover damages for the injury he received on account of the alleged negligence of the defendant while he was in its employ. The defendant is a corporation engaged in manufacturing staves at its mill, located at Leslie, Arkansas, and plaintiff was in its service at this plant.

The plaintiff alleged that he was at the time of the injury complained of performing the duty of picking up and hauling away splits or shavings, and while thus employed a block of wood was caught in a saw and hurled with great force against him, striking him above the eye and injuring him severely. The complaint did not set forth definitely the acts of negligence charged against the defendant. Without asking, however, that the acts of negligence attributed to it be more definitely stated, defendant filed its answer, in which it made a general denial of the allegations of the complaint, and pleaded that plaintiff had assumed the risk of the injury he sustained.

The testimony tended to prove that the alleged negligence on the part of defendant causing the injury consisted in failing to furnish plaintiff a safe place in which to perform the duties of his service. This negligence arose either from the failure on the part of the defendant to furnish a saw provided with an apron or shield to prevent the blocks of wood striking the saw from being hurled from it, or in permitting the blocks to accumulate upon the floor to such an extent that they reached the saw.

By failing to ask that the complaint be made more definite and certain, the defendant waived any objection to it upon this ground, and the complaint will be deemed to have been amended to conform to the proof. The trial resulted in a verdict and judgment in favor of the plaintiff.

Plaintiff had been in the employ of the defendant for some time prior to receiving the injury complained of, and was engaged in duties about the yard of the plant. On the day he sustained the injury, he was directed by the defendant's foreman to carry away the shavings or splits from a machine called a "bucker." This machine was situated about six to ten feet from a cut-off saw, from which the block was thrown. At this saw the ends of staves were sawed off, making blocks about five to six inches square, and seven-eighths inch thick. The saw was about eighteen to twenty-four inches above the floor upon which the blocks would fall, and as they accumulated they were carried away by another servant. Plaintiff's duty consisted on this occasion in carrying away the shavings from the bucker, and he was not engaged in any duty at the saw; and he testified that this was the first time that he performed any service at this place. While thus engaged, a wooden block caught in the saw and was hurled with great force against the plaintiff's head, injuring him painfully and severely. From the facts and circumstances adduced in evidence, we think the jury were warranted in finding that this block either fell on the saw as it was cut from the stave, or that the blocks had accumulated upon the floor to such an extent that they toppled over upon the saw, and by its revolution this block was hurled against the plaintiff, who was probably six to ten feet away.

There was testimony tending to prove that an attachment, known as an apron or shield, could have been placed on the saw, which would prevent the blocks from being thrown by it against one, and also from coming in contact with the saw after they had fallen on the floor; and that this attachment could have been placed thereon at little expense. The saw did not have the attachment, and there was testimony from which the jury were warranted in finding that the saw, without this attachment, was not a safe appliance for the work. On the other hand, there was testimony tending to show that the saw, unguarded by the shield or apron, was a reasonably safe appliance, and that a block seldom fell on the saw, and never before was hurled from it as on this occasion. The testimony on the part of plaintiff tended further to prove that his duties had prior to this time consisted of working upon the yard, and that he had not worked at this place or near the saw before the day on which the injury occurred, and that on this account he was not familiar with the manner in which it was operated and did not know or appreciate the dangers arising therefrom.

From the testimony adduced at the trial, we are of the opinion that there was sufficient evidence to warrant a finding that the defendant was negligent in not exercising ordinary care to furnish a safe machine near which the plaintiff was directed to work, by reason of its failure to supply it with an apron or shield in order to prevent the saw from hurling the blocks; or that the defendant was negligent in permitting the blocks to accumulate upon the floor to such a height as to fall upon the saw. On the other hand, we think that there was sufficient evidence to warrant the jury in finding that the saw which was furnished was a reasonably safe instrumentality for performing the work, and that it was a question of fact for a jury to determine whether or not the defendant was guilty of negligence in permitting the blocks to accumulate upon the floor near the saw, as was done on this occasion.

The court gave a number of instructions to the jury, but gave none predicating the act of negligence on the part of plaintiff in permitting the blocks to accumulate upon the floor at the saw so as to come in contact with it. The sole act of defendant's alleged negligence to which the court directed the jury's attention was in the failure to provide the cut-off saw with a shield or apron.

The court, over appellant's objection, gave the following instruction:

"2. You are instructed that, before you would be authorized to find for the plaintiff, you must believe by a preponderance of all the testimony in the case that the plaintiff's injury was caused by the negligence of the defendant, and you are instructed that if you find the defendant was operating a cut-off saw, without proper guards or hoods to prevent the saw from throwing the refuse matter from said saw to where employees were discharging their duties, that it would be liable for any injury that its employees might sustain by reason of being hit and injured by such refuse."

By this instruction the court charged the jury in effect that a cut-off saw without a guard or hood attached to it was an unsafe machine, and that it was an act of negligence on defendant's part in failing to furnish a saw with that particular safeguard. This, we think, was a peremptory instruction upon a disputed question of fact, and for that reason was erroneous. It is well settled that it is the duty of the master to exercise ordinary care to...