Seaman Store Co. v. Bonner

• Decision Date: 07 February 1938
• Docket Number: 4-4929
• Citation: 113 S.W.2d 1106,195 Ark. 563
• Parties: SEAMAN STORE COMPANY v. BONNER
• Court: Arkansas Supreme Court

113 S.W.2d 1106

195 Ark. 563

SEAMAN STORE COMPANY v. BONNER

4-4929

Supreme Court of Arkansas

February 7, 1938

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge; affirmed if remittitur entered.

Judgment affirmed otherwise reversed and remanded.

R S. Wilson and Daily & Woods, for appellant.

Partain & Agee, for appellee.

BAKER J. GRIFFIN SMITH, C. J., SMITH and MCHANEY, JJ., dissent.

OPINION

BAKER, J.

This is an appeal from the Crawford circuit court. Suit was filed there on or about May 19th or 20th, 1937, alleging injury caused by a falling freight elevator in the business house of the appellant.

It is alleged in the complaint that certain parts of the elevator were old, worn and defective, and particularly that a wedge key used to fasten a pinion wheel on a shaft had worked loose, and that this loosening of the wedge key permitted the wheel to slip or turn upon the shaft, and the loaded elevator to fall and strike young Bonner, who was aiding in the operation of the elevator in moving merchandise from the first floor to the second floor of the store building of the appellant. It was the contention of the appellee that the appellant knew, or, in the exercise of ordinary care, should have known of the loose wedge key; that a reasonable inspection would have disclosed the condition; that the appellant negligently failed to make inspections.

The appellant contended, first, that the loose wedge key was not discoverable by inspection and, second, that the loosening of the wedge key and the descent or falling of the elevator were simultaneous and, third, that the slipping out of the wedge key was an occurrence impossible of anticipation.

This case has been presented upon briefs somewhat voluminous and in addition upon oral argument. There are several assignments of error presented by appellant. (1) The appellant was entitled to a directed verdict on the question of liability; (2) The appellant was entitled to a directed verdict on the issue of permanent impairment; (3) The appellant's motion to reopen the case for further testimony should have been sustained; (4) That appellee's counsel was guilty of improper and highly prejudicial argument; and (5) The verdict of the jury is excessive.

We shall attempt to discuss and dispose of these several issues, devoting such attention to each as its real importance may seem to require, but we shall not attempt to quote in detail testimony of witnesses upon each of the several propositions, but must content ourselves with the statement of what we conceive to be the facts as stated most favorably for the appellee.

The elevator upon which the appellee was employed at the time of his injury was in the store or mercantile business house of the appellant company. It was about seven feet wide and ten feet long. It is what was known as a hand-power freight elevator operated to move freight and merchandise from the first floor to the second floor; the shaft upon which the drum was located, or to which it was connected by the operating machinery, was up at the top, or probably above the ceiling of the second floor; that a cable or cables went from the elevator to the drum upon which they were rolled or unrolled in the raising or lowering of the elevator. There were counterbalancing heavy weights. At the time of the injury alleged, the elevator was in use moving freight, a heavy load of merchandise, and two or three employees were engaged in this work. Power was applied by those operating the elevator by pulling or swinging upon a large rope; that perhaps only one would pull upon the rope at a time and he would step back and another would take his place until the elevator had reached the top, then a hand-brake was applied by pulling upon another rope which held the elevator in the proper position until it was unloaded. The shaft, at or about the ceiling of the second floor, was horizontal and upon it was fastened to what is called a pinion wheel. This pinion wheel had to be securely fixed so that it would not turn upon this shaft, or axis, but in the operation of the elevator the wheel would turn with the shaft or axis upon which it was fastened. The fastening device was a wedge shaped piece of iron or steel, perhaps one-half inch thick, and maybe a little more than that in height at the larger end, and it tapered to a point at the other end, and this was driven into a slot cut into the shaft just wide enough to hold this wedge key set upon edge in the slot, and into a corresponding slot, or cut in the pinion wheel into which the wedge was engaged or driven, fastening the wheel upon the shaft. This is said to be a very simple and a very common device used generally in fastening wheels or pulleys upon shafts in many kinds of machinery and ordinarily it is deemed very secure.

This wedge key, immediately after the accident, was found to be loose and sufficiently withdrawn from, or out of the slot, to permit the wheel to turn upon the shaft; that it was burred and the smaller end twisted or bent. It was shown that it was repaired by filing off the burrs or roughened particles and straightened and was driven back into the slot.

At the time of the accident young Bonner and another employee, working together, were hoisting a load of freight on the elevator, and in doing so were standing on the first floor pulling upon a rope used for that purpose. Bonner had been pulling at the rope and stepped aside to permit his companion to take his place. We do not know just how high the elevator had gone, but evidently somewhat above the heads of the employees, when it fell with a crash that was heard by people in nearby houses, some of whom visited the scene immediately after the accident. In falling, young Bonner was struck upon the head and carried down with the elevator. A cut or gash was made upon his head and his upper lip was split. The elevator was pulled up and he was taken from under it. He was unconscious for a short time. There was not found upon examination, however, at that time or thereafter, any broken bones or fractures, or any depressions upon the cranium.

Within the next few days, after this accident occurred, young Bonner went two or three times for examination and treatment, and did walk in and out of the clinic or hospital where he was examined and treated. About ten days after the accident he filed this suit in the Crawford circuit court, and since that time he says he has not been able to walk, at any time or on any occasion without having someone support him.

It is argued most seriously that we should hold, as a matter of law, that when this wedge key came loose the elevator could not be operated, that is to say, that the loosening of the key and the accident were simultaneous, and that no reasonable inspection would have disclosed the loosened condition of the key, if one had been made. We think this contention is open to a very serious doubt as to its accuracy. Those in control of the operation of the store building testified that they had been operating this elevator for a period of about ten years, and that no actual inspections had been made by them or anyone for the store building, except possibly an inspection made about two and a half years before the accident. The extent or thoroughness of that inspection, or for what purpose, is in no wise shown by any witness. It is said to have been made by one who is still a resident of Fort Smith.

Two or three witnesses used as experts, two of whom were employed by elevator companies, who had made inspections for such companies, testified in regard to inspections of elevators, and one who said he was a safety engineer for an insurance company and whose business it was to make inspections of elevators which his company insured. He said that ordinarily they made inspections at least once a year to determine the safety of elevators in order that they might avoid accidents and losses caused thereby. Some of these witnesses indicated, however, that most of the inspections of elevators where wheels are fastened to axles with the wedge key device such device is ordinarily not very closely observed, if noticed at all.

The manager of the store testified that the next morning after this accident he and another man employed there made an inspection to determine, if possible the cause of the accident; that he sent a man with a flash light to examine this shaft upon which was fastened the pinion wheel with the wedge key; that the wedge key was found to have been loosened to such an extent that the man making the examination removed it or pulled it out with his fingers and handed it to him. He also described the burred condition, the twisting or bending at the end of the wedge key as it was found when they removed it. From this testimony it is observed that the wedge key had not fallen or come out of the slot, but had only receded or slipped out to such an extent that the wheel was permitted to turn. It is possible that it may have become loosened in a very short time, but it is also possible that it may have been working loose over a long period of time. It is a certainty, however, that if it had been loosening or backing out of this slot over a period of years, as it is possible that it could have done, it reached the point on the day of the accident, for the first time, when the wheel was permitted to turn. The burred and twisted condition may have been caused by the pulling of heavy loads upon this loosened key. At any rate, it does not seem consistent with physical laws that the wedge key could have instantly slipped or backed out of the slot just far enough to permit the accident, and to have been safe and secure at all times prior thereto.

There is no suggestion that the appellee was charged with any duty in...