Sheldon Handle Co. v. Williams

• Decision Date: 13 March 1916
• Docket Number: 238
• Citation: 184 S.W. 43,122 Ark. 552
• Parties: SHELDON HANDLE Co. v. WILLIAMS
• Court: Arkansas Supreme Court

184 S.W. 43

122 Ark. 552

SHELDON HANDLE Co. v. WILLIAMS

No. 238

Supreme Court of Arkansas

March 13, 1916

Appeal fro Hot Spring Circuit Court; W. H. Evans, Judge; reversed and dismissed.

Judgment reversed and cause dismissed.

M. S Cobb and Wilson & Armstrong, for appellants.

1. A verdict should have been directed for defendant. This is a clear case of assumed risk. Where the duty is delegated to the servant himself of making his own working place and appliances safe, or to determine the sufficiency of the appliances or material which he has to use, then he assumes the risk of any danger arising from the use of such working place, appliances or material. There was no negligence on the part of the master; the material furnished was good and the choice of using it was left entirely to the servant. 26 Cyc 1182, 1186; 100 Ark. 462; 95 Id. 560; 81 Id. 343; 93 Id. 140; 100 Id. 156; 101 Id. 197, 283; 108 Id. 377. The judgment should be reversed and the cause dismissed. 4 Thompson on Negl., § 4616.

2. The lacing was bought from a reputable and reliable dealer; it had been used by plaintiff since the factory was opened and had been tested by constant use. 65 F. 482; 163 Mass. 364; 132 N.Y. 273; 127 F. 92; 72 S.W. 113; 53 A. 665.

H. B Means and J. C. Ross, for appellee.

It is conceded that, under our decisions as cited by appellants that where an employee is charged with the duty of making his own working place safe and fails to do so, etc., and injury results, his action for damages will fail either on the ground of assumed risk or contributory negligence, or both. But we do not concede that appellee here had that duty or assumed it. His only duty was to use the material furnished him for the purpose with ordinary care. The injury was caused by the inherent defect in the material furnished and there was no assumption of risk. He was not an expert and had only a few months experience and used the only lacing he could get in an emergency. The rule of simple appliances does not apply here. There was no error in the court's instructions. The law of this case is well settled as to the master's duty and responsibility in such cases.

MCCULLOCH, C. J. HART, J., dissenting.

OPINION

MCCULLOCH, C. J.

Sheldon Handle Company is the name of a partnership composed of Mason Sheldon, M. O. Sheldon and Z. L. Sheldon, who are operating a wooden handle factory, at Malvern, Arkansas. The factory was constructed in the autumn of 1913, and was actually put into operation in January or February, 1914. The plaintiff, Claude Williams, began working for the defendants at the factory before the actual operation was begun. In other words, he was employed in November, 1913, to do general work about the plant, and when the operations began he was put to work at a lathe and continued to work there until he received the injury, on August 31, 1914, for which he seeks to recover compensation in this case. While he was at work at his lathe early in the forenoon of that day, a belt came loose from above him and fell down and struck his elbow and threw his hand into the knives of the machine, and serious injury to the limb resulted.

The cause of the giving way of the belt was that the lacing broke. There was no defect in the belt itself, and the plaintiff testified that he noticed when he went to work that morning that the lacing seemed to be in good condition. It was a seven inch belt, and, according to the testimony of one of the witnesses, carried ten or fifteen horse-power. The mill had been shut down nine days--from Saturday, August 22 to Monday, August 31, the day plaintiff was injured. It was a part of plaintiff's duty to see that the things about his machine, including the belt, were in proper order. Two or three days before the mill was shut down, plaintiff put new lacing in the belt. It is not explained in the testimony, so far as we have observed, whether the lacing broke or came loose or merely was thought to be worn out; but, at any rate, plaintiff undertook to lace it, as was his duty. Lace leather was kept in the plant to use in lacing the belt. A side of lace leather had been purchased by Mr. Sheldon, the manager, when the mill began operation and was kept in a certain cupboard or locker. At this time the side of leather had been used down to a strip about six inches wide and about three feet long, which included the thin or flanky part of the side. When the plaintiff got ready to lace the belt he went to the locker and got the piece of leather, but after looking at it decided that he would rather cut the lacing from a new side of leather which Mr. Sheldon had recently procured, but which it does not appear had been put in use. He talked with one of the men, Mr. Burch, who was also a witness in the case, and decided that he would rather cut strips from the new side of leather because he could get longer strips, and also because he thought that the thicker part of the hide would be better. He went off to find Mr. Sheldon, but the latter was away from the plant at that moment and the office was locked, so without seeking further, the plaintiff went back and got the old piece of lace leather, and, with the help of Burch and another employee named Hicks, proceeded to cut the strips and lace the belt. The testimony shows that he cut the strips the full width allowed by the holes in the belt and that the lacing...