Southwestern Gas & Electric Co. v. Godfrey

• Decision Date: 22 October 1928
• Docket Number: (No. 201.)
• Citation: 10 S.W.2d 894
• Parties: SOUTHWESTERN GAS & ELECTRIC CO. et al. v. GODFREY et al.
• Court: Arkansas Supreme Court

Page 894

10 S.W.2d 894

SOUTHWESTERN GAS & ELECTRIC CO. et al. v. GODFREY et al.

(No. 201.)

Supreme Court of Arkansas.

October 22, 1928.

Rehearing Denied December 10, 1928.

Appeal from Circuit Court, Scott County; J. Sam Wood, Judge.

Action by J. R. Godfrey and another, and by J. R. Godfrey, as administrator of the estate of Victor Godfrey, deceased, against the Southwestern Gas & Electric Company and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

This is a suit by J. R. Godfrey and Eller Godfrey, appellees, and J. R. Godfrey, as administrator of the estate of his son, Victor Godfrey, deceased, for damages for his wrongful death, alleged to have been caused by the negligence of appellants. Victor Godfrey, a minor under 16 years of age, unmarried, was employed as a workman in the heading mill plant of Harry Wann, at Mena, Ark., which was run and operated by electricity furnished by the Southwestern Gas & Electric Company, over appliances installed by it. Victor Godfrey came in contact with the wire carrying the current, was severely burned, and the injury resulted in his death shortly thereafter. It was alleged that the deceased was under the age of 16 years, unmarried, in good health, and at the time of his death and prior thereto was contributing all his earnings to the support of his mother and father, and would have continued to do so for the remainder of their lives, but for his death, wrongfully caused by appellants' negligence, and that J. R. Godfrey incurred for medical and funeral expenses for his son on account of the injury $250. J. R. and Eller Godfrey prayed judgment for $25,000, and Godfrey, as administrator, prayed judgment in the sum of $25,000.

On February 6, 1928, the Southwestern Gas & Electric Company filed a demurrer to the complaint, alleging it did not state facts sufficient to constitute a cause of action, and by separate answer denied the allegations of the complaint and pleaded the contributory negligence of Victor Godfrey, which caused and contributed to his injury by getting into a place of danger after being shown of the danger; that he was a trespasser as to the property of the Southwestern Company, not being employed to do any work in or about its property and without its knowledge of his employment in any capacity; that he had no right to handle any of its appliances, and no right to be in the place where he was injured, and the injury received was due to his own negligence; that deceased was employed by Harry Wann in violation of law, being under 16 years of age, in a dangerous occupation, and that plaintiffs' permitting and suffering such employment constituted contributory negligence, and was the proximate cause of the boy's death; that, if Victor Godfrey was injured as alleged, his injury grew out of the nature of his employment, the risk of which was assumed by him, and also by plaintiffs, when they suffered and permitted such employment.

Appellant Wann denied the allegations of the complaint, and alleged that the injury of the deceased did not occur in the course of his employment, but was the result of his own carelessness and negligence, apart from and outside of the scope of his employment; that he was employed with the knowledge and consent and at the request of the plaintiffs, and, if there was any negligence on his part in the employment of the said Godfrey to do the work, the plaintiffs assenting thereto were guilty of contributory negligence and not entitled to recover. He denied that there was any negligence on the part of either defendant.

The testimony shows that the boy was under 16 years of age, was employed as an offbearer at one of the machines, some distance from the heading machine, where the injury occurred, and had been working in the mill for about one year; that his father knew that he was employed there, and frequently passed by the mill in the morning with his son on the way to his own work, which was at another mill some distance away. No one saw the deceased until he came in contact with the wire. The wires carrying the current came into the mill shed along the top of it, and came straight down to near the top of the stop box, up through which the wires carrying the current to the machine extended, and were spliced to the other wires just above the stop box. The top of this stop box was about 4½ feet from the floor, and above it was a shelf upon which there were several articles, and a cake of soap which was used for dressing the belts to keep them from slipping on the wheels of the machines. The deceased was reaching up toward the shelf upon which the soap and other articles were resting when his forearm came in contact with the wire, where it was spliced above the stop box, and he was severely burned. Some of the employees saw the flash, and the flame 5 or 6 inches in length on his arm, and a boy working nearby rushed over and struck the wire loose from him with a stick. There was a place burned about the size of a dollar down to the bone of his arm, and he was severely burned on the pelvis bone and his privates. He was shortly removed down town two or three blocks, where a doctor examined and gave him first aid.

Some witnesses testified that he groaned and frowned as though in pain, and one stated that he thought he recognized him. They stated his eyes were about half open and appeared normal, and from other tests made that he was not killed instantly. The doctors, one of whom treated him on the sidewalk, immediately upon his arrival down town, and the other some time afterwards, before he had been removed, both stated that it was their belief that the shock caused his death instantly, and that he suffered no conscious pain, although treatment in attempt to revive him was continued for half an hour or more after he was carried down town. There was testimony showing the earning capacity of the boy and that he was unmarried, and some testimony indicating an intention or disposition to contribute to the support of his parents...