Pekin Stave & Mfg. Co. v. Ramey

• Decision Date: 09 June 1913
• Citation: 158 S.W. 156
• Parties: PEKIN STAVE & MFG. CO. v. RAMEY.
• Court: Arkansas Supreme Court

Page 156

158 S.W. 156

PEKIN STAVE & MFG. CO. v. RAMEY.

Supreme Court of Arkansas.

June 9, 1913.

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.

T. D. Wynne, of Fordyce, and Garner Fraser, of Little Rock, for appellant. E. G. Mitchell and Guy L. Trimble, both of Harrison, for appellee.

KIRBY, J.

This is the second appeal of this cause, which is sufficiently stated in the opinion rendered on the first appeal, reported in 147 S. W. 83. The court reversed the case because of an erroneous instruction, which was held, in effect, to be peremptory and amounting to a direction of the verdict, and said: "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 defendant 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." It also said the testimony was sufficient to warrant the jury in finding that the saw furnished was a reasonably safe instrumentality for performing the work, and it was a question of fact for the jury to determine whether the defendant was negligent in permitting the blocks to accumulate near the saw as was done on this occasion.

Upon the trial anew, virtually the same testimony was introduced as upon the former trial, the appellant objecting to a statement of the attorney for appellee that it immediately after the accident and injury provided a shield around the saw to prevent it coming in contact with blocks and occasioning injury such as occurred to appellee, and to the introduction of testimony relating thereto. In the opening statement to the jury appellee's counsel said: "We will show you, gentlemen of the jury, by their own testimony, by their own employés, it is not disputed or denied, never has been and I assume never will be, that this saw could have been protected at very small cost of almost nothing; they did protect it immediately afterward." This was objected to, and the court said: "You can state what was done before the accident, but not afterwards." Counsel for appellee said further: "The proof will show, gentlemen of the jury, it has been repeatedly shown by witnesses and by the facts in the case that within five minutes after he (Ramey) was hurt they had at no cost, put a hood on it, fixed it, and since then they have never hurt a man by that saw." The court on appellant's objection said to counsel, "Go on," and to the jury, "You will not consider anything they did afterwards, but before and at the time of the injury," without any further remark. The appellant asked the court to exclude all the remarks of counsel in regard to placing the shield about the saw after the accident from the consideration of the jury, and to instruct them not to consider it, to which the court said: "Gentlemen of the jury, that is just what I said before. * * * You are not to consider what they did afterwards, but before it was on, at the time of the injury."

H. S. Lacy testified that it was his duty to remove the blocks as they fell from the cut off saw, where he was at work at the time of the injury. "There was a way to prevent the saw from throwing blocks. An apron put there would have shoved the blocks off to one side. An apron 2½ feet wide and 4 feet long would have been sufficient." Counsel then asked the witness if appellant did not put one there after the accident. This being objected to, and the objection sustained, counsel immediately said: "I will ask you if they did not put one there within five minutes after Ramey was hurt? Do not answer." The court likewise sustained the objection. Counsel for the plaintiff then said: "I want to ask if since then it has thrown any blocks, your honor, and want it written down and I will pass on, write down. I want to ask if since that apron was put there, if it is a fact it has ever thrown a block." Upon objection, the court said: "You can show if it has not thrown any blocks since, you can show the reason why it has not." Objections were made and exceptions saved to this ruling. Counsel for appellee asked: "State whether or not since Mr. Ramey got hurt, if there has ever been anybody else hurt by blocks thrown that way?" To which the witness replied, "Not to my knowledge," and upon being asked, "Why," said, "Because there was a shield to protect that." He then described the shield. By counsel for appellee: "Therefore, it could not throw blocks? A. The saw could not pick up the blocks from underneath, because it could not get underneath the saw." Appellant moved to exclude this testimony, relating to the changed condition since the accident, and its objections were overruled and exceptions saved.

During the examination of F. M. Pittman, another witness for appellee, the following occurred: "I worked there several weeks after that, and did not see the saw throw any blocks." Upon objection the court told the witness to answer, to which the witness replied, "No; I did not." "Q. Why did it not throw blocks after that? Tell the jury why it did not." Counsel for the defendant objected to the question, and objections were overruled and exceptions saved by the defendant. "A. Well there was a protection put there, what is called an apron, put so the blocks could not get under the saw, could not drop under that, I suppose. Q. All the time since you never saw it throw any blocks? A No, sir; I never did." Counsel for defendant objected to the answer, and asked that it be stricken from the record and the jury instructed not to consider it. The objection was overruled and exceptions saved.

During the examination of Finis Le May, another of the witnesses for appellee, the following occurred: "I will ask you if that cut off saw ever threw blocks at any time after that? Counsel for defendant: I object to the question. Court: Ask if he knows. Q. How long did you work after that? A. I worked about a year. Q. State whether or not in the year...