Southern Cotton Oil Co. v. Spotts

Decision Date20 January 1906
Citation92 S.W. 249,77 Ark. 458
PartiesSOUTHERN COTTON OIL COMPANY v. SPOTTS
CourtArkansas Supreme Court

Appeal from Jackson Circuit Court; FREDERICK D. FULKERSON, Judge affirmed.

STATEMENT BY THE COURT.

The plaintiff, Jim Spots, brought this suit against the Southern Cotton Oil Company to recover damages for personal injuries sustained by reason of the alleged negligence of the defendant.

The defendant (a foreign corporation) was operating a cottonseed oil mill at Newport, Ark., and plaintiff was in its service as a day laborer. Plaintiff's duties were to perform work of a miscellaneous character about defendant's mill under the directions of the foreman or superintendent and among other duties, to keep the machinery oiled.

He received the injuries complained of while oiling certain parts of the machinery while it was in motion, and claims that he did so pursuant to direct command of the foreman that he requested the foreman to shut down the machinery which the latter refused to do. This was denied, and the testimony on this point was conflicting. At the time of the injury, plaintiff was oiling the part of the machinery operating what is known as the "boll reel." He had climbed up, and was standing upon the conveyor, several feet above the floor, and was attempting to pour oil into an oil hole on the shaft behind a large cogwheel, called the "crown gear." Engaging the crown gear was a smaller cogwheel or pinion, which was set on a shaft connected with a belt which supplied power to run the boll reel. The plaintiff claimed that on the shaft immediately back of the crown gear, and between it and the bearing into which he was pouring oil, there was a collar which was held in place by a set screw projecting about an inch. His statement as to the injury was that he did not know the the presence of the set screw; that it, as well as the oil hole, was in a dark place behind he crown gear, and that, as he was cleaning out the oil hole preparatory to pouring oil into it, the set screw caught the sleeve of his work coat, threw him against the machinery, and broke his finger, cut his shoulder, and inflicted other injuries.

Plaintiff's testimony is in part as follows:

"The way I got hurt that morning, Mr. Stark passed through there, and said: 'Spotts, how is everything?' And I said: 'It is all right.' He said: 'Keep everything going, and keep oiled up.' He said: 'I smell a hot box; hunt it up and oil it.' He went into the office and stayed about half an hour, came back and said, 'Spotts, hunt that box up, and oil it.' I said: 'All right; I have looked for it, and I can't see which one it is, unless it is the one on the boll reel.' He said: 'By God! for Christ's sake, oil it.' I said: 'You will have to shut down the machinery.' He said: 'Do you think I will shut this down for that little box?' He had always told me to put it there on Sunday, and that Sunday I hadn't worked. After he spoke and told me to get up there and oil it, and I asked him if he would shut down, and he asked me if I was a damned fool to reckon he would shut down the machinery to oil it, I went and got my can, and there was a piece of ladder I was afraid I would fall on the conveyor. There was a ladder about ten feet high. It was broken. I went up there, and the conveyor ran along, and there was a shaker, and I put my foot on the block, and got up on another conveyer, and didn't notice the set screw."

The defendant denied that there was any set screw at the place named, or that the foreman directed plaintiff to oil the machinery while in motion, and introduced testimony in support of its denial.

The jury returned a verdict in favor of the plaintiff, assessing his damages in the sum of one thousand dollars, and the defendant appealed from the order overruling its motion for a new trial.

Judgment affirmed.

Jno. W. & Joseph M. Stayton, for appellant.

It was necessary for plaintiff to prove affirmatively, not only the location or existence of the collar and set screw, but that defendant had notice of it, or was negligently ignorant of it. 46 Ark. 555; 44 Ark. 524; 46 Ark. 388; 48 Ark. 333; 54 Ark. 289; 58 Ark. 324; Ib. 217; 41 L. R. A. 1, note; 1 Labatt, Master and Servant, 225; 57 Ark. 402; 20 Ark. 600. Such knowledge was a condition precedent to recovery by plaintiff. 1 Labatt, Master and Servant, 1229.

The seventh instruction was erroneous in that it told the jury that the assurance of safety relieved plaintiff from assuming the risk of oiling the machinery. 1 Labatt, Master and Servant, 1262; 177 Mass. 422; 59 N.E. 65; 76 F. 349; 10 Kan.App. 413; 31 W.Va. 142. It withdraws from the jury consideration of the fact that plaintiff might have known the location of the set screw. 57 Minn. 43; 104 F. 282; 89 Mich. 249; 47 Minn. 128; 8 Col. App. 541; 169 Mass. 313; 124 Mich. 125; 34 N.Y.S. 1089.

Joseph W. Phillips and Campbell & Suits, for appellee.

The defendant was bound to know all parts of its machinery, and the hazards incident thereto. 46 Ark. 555; 44 Ark. 524; 48 Ark. 333; 1 Labatt, Master and Servant, 255; 92 F. 572; 54 Ark. 389; 56 Ark. 206; 77 Am. Dec. 212; 59 Am. Rep. 80; 15 Am. St. Rep. 298.

The court properly submitted the issues to the jury, and correctly instructed them. 58 Ark. 131; 52 Ark. 517. As to instruction 7, see 48 Ark. 333; 56 Ark. 206.

OPINION

MCCULLOCH, J., (after stating the facts.)

The defense put forth by the defendant was that the manner of the plaintiff's injury was one of the ordinary dangers connected with and incident to the service which he was employed to perform, and that by virtue of his employment he assumed the risk; or that the injury resulted directly from the negligence of the plaintiff. Numerous exceptions were saved to the giving of instructions asked by the plaintiffs, and the refusal of certain instructions asked by the defendant. We do not deem it necessary to set forth and discuss all the instructions asked or given. The court correctly put the case before the jury upon the issue of negligence of defendant and contributory negligence on the part of the plaintiff.

Counsel for appellant especially complained at the following instruction, on the question of assumed risk, given on motion of plaintiff.

"7. If you find from the evidence that the foreman or superintendent directed plaintiff to oil the machinery while in operation, and the plaintiff requested him to stop the machinery for such purpose, and the foreman or superintendent refused to do so, but told plaintiff that it was not dangerous, or that he would not get hurt, then plaintiff would be relieved of any assumed risk, and would not be guilty of contributory negligence in obeying such direction, unless the danger was so patent that no person of ordinary prudence and...

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