Scott v. Wisconsin & Arkansas Lumber Company

• Decision Date: 28 March 1921
• Docket Number: 244
• Citation: 229 S.W. 720,148 Ark. 66
• Parties: SCOTT v. WISCONSIN & ARKANSAS LUMBER COMPANY
• Court: Arkansas Supreme Court

229 S.W. 720

148 Ark. 66

SCOTT v. WISCONSIN & ARKANSAS LUMBER COMPANY

No. 244

Supreme Court of Arkansas

March 28, 1921

Appeal from Howard Circuit Court; James S. Steel, Judge; reversed.

Judgment reversed and cause remanded.

Andrew I. Rowland, D. D. Glover and J. G. Sain, for appellant.

The testimony here warranted the submission of the controversy to a jury, and it was error to direct a verdict for the defendant.

When a servant enters the employment of the master, he only assumes the usual and ordinary risks of the employment, and does not assume the negligence of the master, or the master's servants unless he knew and appreciated it. There is no testimony that deceased knew that defendant's servants had put this setscrew in the lineshaft. The testimony shows that this set screw was of unusual and dangerous length and not intended for a small shaft of this kind. Deceased did not assume the risk, and whether he did or not was for a jury under proper instructions. 86 Ark. 508, 515; 97 Id. 347; 102 Id. 646; 105 Id. 353; 111 Id. 9; 113 Id. 45; 123 Id. 119; 90 Id. 555, 226; Labatt on Master and Servant §§ 7-14.

It is the duty of the master to make reasonable inspections to see that the place of work and appliances are safe. 90 Ark. 227. It is his duty to exercise ordinary care in discovering defects and in repairing them, and he is liable if he fails to exercise due care in selecting a safe place to work and safe appliances for the servant to work. 91 Ark. 389; 87 Id. 321; 92 Id. 502.

In determining whether or not a verdict is properly directed plaintiff's evidence should be given the strongest probative force.

A case was made for a jury here. 105 Ark. 401; 79 Id. 53; 86 Id. 244; 87 Id. 321.

Ordinarily the question of assumed risk is one of fact for a jury, unless the facts are undisputed. 98 Ark. 29; 91 Id. 102; 92 Id. 502, 554; 95 Id. 291; 89 Id. 372; 96 Id. 451; 104 Id. 267; 99 Id. 490; 120 Id. 208. See, also, 124 Ark. 588; 132 Id. 385; 134 Id. 136; 77 Id. 458; 86 Id. 329, 507; 88 Id. 28; 88 Id. 556; 82 Id. 86; 102 Id. 460.

W. R. Donham and T. D. Wynne, for appellee.

The alleged negligence was not the cause of the injury. The proof must establish a causal relation between the negligence complained of and the injury sustained. A master may be guilty of negligence in operating defective machinery, yet the proof may show that the negligence existing was not the cause of the injury sustained. 76 Ark. 440. There can be no recovery if the evidence tends to prove that the accident was not caused by the defect complained of. 4 Labatt on M. & S., par. 1570. The uncontradicted proof here is that the defects complained of were not the cause of the injury, and the court properly directed a verdict for defendant.

Before a servant is relieved of the assumption of risk by reason of complaint and promise to repair, it must be established (1) that the servant complained of the identical defect which caused the injury; (2) that the complaint was made because of a fear that a continuation in the employ of defendant with the defects complained of would jeopardize the employee's personal safety, and (3) that the employee continued in the work because of the promise to repair having been made. Applying the facts to these fundamental principles, the court properly directed a verdict.

OPINION

WOOD, J.

The Wisconsin & Arkansas Lumber Company, hereafter called appellee, is a corporation having a mill plant and engaged in the business of manufacturing lumber and other timber products at Walco, Arkansas. Roy Scott, hereafter called deceased, had been in the employ of the appellee for more than eight years. For more than two and a half years prior to his death, he was employed in the capacity of lath mill foreman. While in the discharge of his duties as such foreman on the 30th day of January, 1920, his clothing was caught on a line shaft, and he was killed. The deceased was twenty-nine years old and left surviving him a widow and five children. This suit was brought by his father, hereafter called appellant, as administrator, against appellee, to recover damages for the benefit of the widow and children of the deceased.

In addition to the above facts, which are undisputed, the testimony on behalf of the appellant tended to prove the following facts: In connection with the mill plant and situated on or near the first floor of the lath mill is a machine called the "hog" which cuts up slabs into small particles. This material is used to furnish the greater part of the fuel of the furnaces for eight boilers which supply power for the entire mill plant, which had a cutting capacity from one hundred to one hundred and thirty-five thousand feet of lumber a day, log scale. This fuel material was discharged from the hog into conveyor boxes or troughs about eighteen inches or two feet wide and fourteen or sixteen inches deep. The bottom of these troughs were lined with sheet iron along which run endless conveyor chains, which convey the fuel to the furnaces. About eighteen or twenty feet from the lath mill floor was a line shaft. The box conveying the fuel material ran from the hog to near this line shaft up an incline at an angle of about twenty degrees and a distance of one hundred or one hundred and thirty feet. The conveyor trough from the hog was operated by a belt and pulley located on a line shaft which is about two feet from the elevated end of the conveyor trough. From the end of the conveyor trough to the sprocket wheel which pulled the conveyor chain was about two and a half or three feet. About two and a half feet beneath the elevated end of the trough and the sprocket wheel which moved the conveyor chain was another trough and a conveyor chain which carried fuel into the boiler room. These troughs and chains ran at right angles to each other at the elevated end of the trough from the hog. Near the elevated end of the trough conveying fuel from the hog there were holes in the lining of the trough. Pieces of the fuel would catch in these holes and in the sprocket wheel. This had caused the conveyor chains to stop frequently. In order to reach the machinery at this elevated point, a ladder about five or six feet long extended from the floor to a running board ten or twelve inches wide, which ran by the side of the trough from the hog to a point within two or three feet of the end of that trough. When the conveyor chain and sprocket wheel became clogged, this stopped the conveyance of the fuel from the hog. To unclog the conveyor chain and sprocket wheel at that elevation, one had to ascend the ladder and walk over the plank walk and stand with one foot on the end of the plank and the other on the top of the trough running to the fuel house. When one went up the walk way to the end thereof, he was in a position about two feet from the line shaft and pulley to his left and about two feet from the sprocket wheel pulling the conveyor chain from the hog on the right, and in front of him was a brick wall at a distance of three or four feet. When one stood with one foot on the plank walk and the other on the side of the conveyor trough running to the fuel room, the line shaft and pulley were to his back, and the sprocket wheel and end of the conveyor trough from the hog would be in front of him and the brick wall to the left. Whatever position he assumed he was surrounded on one side by the revolving shaft, on the other by the brick wall, and on the other by the sprocket wheel. The above was the customary way of unchoking the conveyor chain and sprocket wheel, whether done by the foreman or some one else. There was no other way provided, and it was the custom to do it while the machinery was going. If the belt had been thrown, it would have stopped the shaft, the lath mill and the hog, and the supply of fuel from that source would have been cut off. There was a set-screw near the upper end of the line shaft next to the cog-wheels on the collar about opposite where one would have to stand to unchoke the conveyor chain as indicated above. This set-screw was not sunk, but protruded about an inch or an inch and a half from the shaft.

On the morning of the 30th of January, 1920, the deceased, up to eight or nine o'clock, had unchoked the conveyor chain five times. About nine o'clock the general foreman of the appellee said to the deceased, "Roy, we want all the fuel pushed through that hog we can get." The deceased replied, I don't know what about your fuel unless we can get something done to that conveyor." The foreman said, "Don't let that hog stop today. We are short of fuel; watch her close and keep her unchoked, and keep her going steady. I will fix it tomorrow." The deceased replied, "I will do my best," About 1:30 o'clock p. m. of that day the deceased was killed while unchoking the conveyor chain. His jumper was caught in the set-screw and wrapped around the line shaft, which was revolving from one hundred and twenty-five to one hundred and thirty revolutions per minute. It was rather dark at the place where the deceased was killed, but not so dark as to require a lantern in the day time to work by. The set-screw could not be seen when the line shaft was revolving. It was the duty of the deceased to look after the machinery in the lath mill and to keep the same going and to call attention to any repairs necessary to be done, but it was not his duty to make the repairs. That duty devolved on the millwright.

On behalf of the appellee, the testimony tended to prove that the proper way to make repairs on the sprocket wheel and to unclog the conveyor chain from the hog was to throw the belt off, which could be done by pushing it with the foot or with a stick. There was no danger in doing it that way. The general foreman testified that ...