Pekin Stave & Mfg. Co. v. Ramey
| Decision Date | 06 May 1912 |
| Parties | PEKIN STAVE & MFG. CO. v. RAMEY. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Van Buren County; Geo. W. Reed, Judge.
Action by A. H. Ramey against the Pekin Stave & Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.
T. D. Wynne, of Fordyce, and Garner Fraser, of Little Rock, for appellant. E. G. Mitchell and W. N. Ivie, both of Harrison, for appellee.
This is an action instituted by the plaintiff, A. H. Ramey, to recover damages for an 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, Ark., 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 6 to 10 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 5 to 6 inches square, and 7/8 inch thick. The saw was about 18 to 24 inches above the floor upon which the blocks would fall, and, as they accumulated, 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 6 to 10 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, however, 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...
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