Perkins Oil Co. of Delaware v. Fitzgerald

• Decision Date: 07 November 1938
• Docket Number: 4-5220
• Citation: 121 S.W.2d 877,197 Ark. 14
• Parties: PERKINS OIL COMPANY OF DELAWARE v. FITZGERALD
• Court: Arkansas Supreme Court

121 S.W.2d 877

197 Ark. 14

PERKINS OIL COMPANY OF DELAWARE v. FITZGERALD

4-5220

Supreme Court of Arkansas

November 7, 1938

Appeal from Crittenden Circuit Court; Neil Killough, Judge affirmed.

Judgment affirmed.

Elton A. Rieves, Jr., Lamb & Barrett and Mann, Mann & McCulloch, for appellant.

Shafer & Gathings and John D. Martin, Jr., for appellee.

OPINION

BAKER, J.

The appellants in this case may be referred to as such, or, for brevity, the Perkins Oil Company of Delaware may be called merely the oil company, and C. H. Caldwell may be designated merely as Caldwell, while the appellee may be referred to as such, or as the plaintiff, or by name, as the occasion may suggest.

The oil company owns and operates a large cotton seed oil mill at West Memphis, in Crittenden county, Arkansas. C. H. Caldwell was an employee of that company and is referred to in most instances as the superintendent in the operation of the plant. Fitzgerald was a young man between twenty-one and twenty-two years of age, employed at that plant as a helper in the installation of some of the machinery, including the particular machine upon which he was hurt, which is called in the complaint and evidence a "cotton seed cleaner." He had worked for several weeks during which the plant was not in operation, and, at the time the season opened and the plant began operations, he was employed as an oiler. Many electric motors were employed in the plant and these produced the energy to drive the different units of machinery in the manufacture of cotton seed oil and by- products from the cotton seed. In fact, because so many of these different units were located in different parts of the plant it was deemed necessary to have a separate employee responsible for the proper lubrication of all these different or separate units, and it was primarily, at least, the job for which Fitzgerald was employed; that is to say, he was the oiler. According to the record this was not the only duty he owed to his employer, but it was the principal one. Since the appellee is entitled to have the facts, as established by the proof and reasonable inferences therefrom, construed in a light most favorable to him to sustain the verdict and consequent judgment rendered in this case, an effort will be made so to state the facts, omitting, however, as nearly as possible whatever is not deemed absolutely essential to a full discussion and determination of the issues involved. It is the purpose of this form of presentation to avoid as nearly as possible elaborate quotations from evidence as no good purpose may be served by an argument of disputed facts. Such a discussion would tend to prolong the opinion. Perhaps it may be suggested that the verdict of the jury has settled all these disputed matters and the plaintiff is thereby entitled, in every instance, where there is substantial evidence, to the most favorable conclusions and inferences possible, though we will not attempt to go to that extent in this presentation. The plaintiff has alleged in his complaint, and established by his proof, that Caldwell was his superior, the superintendent in charge from whom he received such instructions as were given him. He was put to work and instructed to fix any machinery he saw broken down or clogged up. This direction or order was given about ten days before the accident, at a time when they were starting the motors, or running them to test them to see if they were in good condition. To use the language as abstracted, the appellee says that "he told me in the lint room that my duties of oiling the motors would carry me all around the mill, and that in the course of my duties I would have to pass all or practically all of the machinery there, and if I saw anything wrong with the machinery, anything broken down or clogged up, to fix it if I could, and if I didn't think that I could fix it to call the machinist or mill-wright." The foregoing statement is quoted for the reason that the appellee says that this is all the instructions or directions given him in the performance of his duties.

The appellee had grown up as the stepson of an employee of an oil mill, had been about oil mill plants a great deal. He had worked perhaps some in the yard of a mill at Dallas, Texas, before the family moved to West Memphis, where the stepfather of the appellee was employed as a night superintendent. He had worked as a helper in the installation of machinery for several weeks prior to the time of his injury, but had been working as an oiler only a day and a half when he was hurt. The injury complained of grew out of the attempted performance of that part of the instructions to the effect that if he saw anything broken down or clogging up to fix it if he could. At the time of the accident, Fitzgerald testified in passing the said cleaner he saw that it was choking up with seed as the seed passed through the conveyor; that he looked for the attendant who served the particular machine and did not see him and then attempted himself to restore the normal operation of the machine and inserted his hand in the slot or opening where it was choked. This place, according to the description he gave of it, was perhaps ten to eighteen inches below a revolving cylinder on which there were blades or ribs, and by which his hand was caught as he was attempting to clear the machine of the congested or choked condition. He says no instructions had been given to him as to the manner of unchoking or clearing the machine, and that he had seen nobody else perform that service. Employees who usually performed that service, it was testified by others, used a stick or shovel, but may safely use the hand if the hand is kept in the conveyor part of the machine and not inserted in the upper part containing the revolving cylinder, which was covered or hidden by the outer casing and front part of the machine. That outer casing, or front part of the machine, may serve as a guard to prevent one from sticking his hand directly in a place where it will be caught by the cylinder, but it also serves to conceal the cylinder which the evidence shows turns sufficiently fast that twenty of these blades or ribs would strike a given point per second. Though it seems unreasonable, yet plaintiff testifies that he did not know of the revolving cylinder prior to the time of his injury; that no one had told him of it.

The evidence is not exactly clear as to why or how the plaintiff came to reach one of his hands above the place in the conveyor where the machine was choking and insert it into the machine at the point where the revolving cylinder caught it. It may be that the excruciatingly torturing pain, the anguish occasioned by the accident were such that plaintiff never clearly remembered the exact process used and movements of his hand in unchoking this machine that caused him to come into contact with the dangerous part of it. No logic or analysis can supply any missing fact in that respect, but we are bound by the statements that the plaintiff had no instruction in regard to the proper manner to perform this service required of him and bound also to accept his statement that he was acting in response to a direct command given him by one in authority, and that while performing this service in close proximity to dangers he did not know, had not observed and, therefore, did not anticipate the accident happening in which one of his hands was caught, and drawn into the flailing machinery. In attempting to extricate himself from the machine by holding himself back, his other hand slipped and was in like manner caught so that both hands and arms were drawn into the machinery, and both so badly mangled that one was amputated above the elbow and the other just below.

This accident occurred on the 23rd day of August, 1934. Thereafter, on the 15th day of January, 1935, the plaintiff signed a release in consideration of the sum of $ 5,000 paid him at that time. The particular details in regard to this release will be set forth in a discussion of the error assigned in regard to that matter.

The voluminous pleadings may be narrowed or shortened by merely stating that the only negligence established and finally relied upon arises out of the failure of the superintendent, Caldwell, to give proper instructions for the performance of the duties required of Fitzgerald, or a failure to warn him of the concealed or hidden dangers in the machine, which he was required to service and which injured him while attempting to perform and discharge a duty required of him by the superintendent having control over him. There was no defect in the machine alleged or proven. It is argued, and we think correctly, according to the undisputed proof in this record, that in the conveyor of the seed cleaning machine, where it is said to have choked, there was no hidden or concealed danger, if there was any at all, and it was also urged that Fitzgerald was more than twenty-one years of age, a graduate of the Dallas High School, more than ordinarily apt, and above the average in point of intelligence, and that he must be presumed, as a matter of law, to have assumed the risk of the employment, and in the discharge of the duties which he was attempting to perform.

In response to this argument it is also shown and, we think beyond question, that one standing in front of the machine at the place where he could insert his hand into the conveyor to unchoke or relieve the congested condition of the seed, as the plaintiff was doing, could not see or observe the cylinder and it is not unbelievable that, although he helped install this machinery, he had not observed this cylinder, or if he had he may not have known its particular function and may not have understood that there was the probability or...