Stecher Cooperage Works v. Steadman

Citation94 S.W. 41,78 Ark. 381
PartiesSTECHER COOPERAGE WORKS v. STEADMAN
Decision Date16 April 1906
CourtSupreme Court of Arkansas

Appeal from White Circuit Court; Hance N. Hutton, Judge; reversed.

STATEMENT BY THE COURT.

In 1902 J. W. Steadman was employed by the Stecher Cooperage Company. He worked for the company at a machine called an edger. This machine had a large wheel, some four or five feet in diameter, made of cast iron with a rim of wrought iron or steel to make it more secure and hold it together somewhat as the tire of a wagon wheel binds the wheel and makes it stronger. On the 18th of October, 1902, while the machine was running, the wheel broke into fragments. The fragments of the broken wheel were hurled in all directions with great force some of them being thrown through the top of the shed, and were afterwards found about two hundred yards distant from the mill. Some of the fragments of the broken wheel struck Steadman, inflicting injuries upon him which caused his death some twenty-four hours afterwards. He left a widow, Mrs Margaret L. Steadman, and some small children surviving him. Mrs. Steadman was afterwards appointed administratrix of his estate, and brought this action against the Cooperage Company to recover damages for the death of her husband.

She alleged, in substance, that the defendant company negligently permitted the machine to be operated while in a defective and dangerous condition, that the large wheel was cracked and out of balance, and that while in this condition it was propelled and revolved with great rapidity, and that by reason of the centrifugal force of said revolving wheel it broke into fragments, some of which struck Steadman, and as a result thereof he was killed. The complaint further alleged that Steadman at the time he was struck was at work under the directions of the agents of defendant, and that his death was due to the negligence of such agents, without fault on his part.

The company filed an answer, admitting that Steadman was killed by the bursting of the wheel, but denied that the accident was the result of negligence on the part of it or its agents. It stated that if the wheel was defective the danger was obvious, and was assumed by Steadman, and that if there was any negligence it was the negligence of a fellow-servant of Steadman, for which the company was not responsible.

On the trial the court, over the objection of the defendant permitted the plaintiff, Mrs. Steadman, to testify that Otto Stecher, the manager of the company, came to her home about 24 hours after the accident, and after her husband had died and said to her: "I am more than sorry, and I will pay the funeral expenses and the doctor's bill. I will pay for a lot in the cemetery. I don't feel myself clear. I rolled and tossed all night, and my wife says that all I kept saying was, 'That poor man!'"

There was a verdict for the plaintiff for the sum of $ 3,042, for which amount judgment was rendered against the defendant.

The defendant appealed.

Judgment reversed.

J. W. & M. House, for appellant.

1. When the danger is patent, the servant can not recover for damages arising from such danger. 60 Ark. 438; 58 Ark. 125; 65 Ark 98; 164 Mass. 168; 161 Mass. 159; 47 F. 688; 57 F. 381; 68 Ark. 316; 35 Ark. 602; 41 Ark. 382; Ib. 542; 56 Ark. 206; Ib. 232; 57 Ark. 76; Ib. 503; 58 Ark. 125; Ib. 324.

2. The court erred in admitting incompetent evidence. Declarations by agents of corporations, if made at the time of the transaction, and within the scope of their authority, are admissible on the ground of res gestae but, if made after the event, are inadmissible. 14 Am. Dec. 628, and note; 66 Ark. 494. Testimony showing the difference in the noise made by the machinery before and after the accident was inadmissible. 18 Am. St. Rep. 303; 59 L. R. A. 119; 1 Wigmore, Ev. § 283; 58 Ark. 125; 48 Ark. 473.

3. The master is not an insurer of the perfection of machinery furnished the servant. It is only required to exercise reasonable care in providing safe machinery, and ordinary care to keep it in a reasonably safe condition. It was therefore error in the first instruction to charge the jury that it was "the duty of defendant to construct and maintain its machinery and appliances in a safe condition." For like reasons it was error in the third instruction to charge the jury that "deceased had a right to rely upon the defendant to perform its duties to him by providing for his use appliances that were reasonably safe."

4. The second instruction is erroneous in that it makes the master an insurer both as to the construction and adjustment of the machinery.

5. The court erred in giving the 4th instruction, and in modifying the 11th by inserting the word "competent" before the word "foreman." The complaint does not allege negligence in employment of any person, nor incompetency of any employee. Defendant was only required to use reasonable care in the selection of its employees, and was not an insurer of their fitness or competency; and if the employee was a co-laborer, he was a fellow-servant, for whose negligence or want of skill defendant was not liable unless it had failed to use reasonable care in his employment. 69 Ark. 363; 7 Ore. 84; 15 Ore. 220; 71 Mo. 514; 72 Mo. 212; 76 Mo. 614; 90 Ill. 425; 40 Ga. 231; 12 Am. & Eng. Rd. Cas. (N. S.), 19 and note; Ib. 644 and note; 35 Am. & Eng. Rd. Cas. (O. S.), 387; 42 Ib. 325; 50 Ind. 385; 22 P. 1079. The rule that error without prejudice is no ground for reversal applies only where it appears so clear as to be beyond doubt that the error complained of could not have prejudiced the complaining party. 114 F. 458; 73 F. 774; 59 F. 860; 5 Wall. 795; 17 Wall. 630; 104 U.S. 625; 110 U.S. 47; 119 U.S. 99; 148 U.S. 664; 158 U.S. 334; 167 U.S. 624. See also 52 F. 371; 36 F. 994.

6. The jury are not warranted in finding exemplary damages unless the negligence is so gross as to imply malice, wantonness, conscious indifference to consequence, etc. 30 Ark. 377; 8 Am. & Eng. Rd. Cas. (O. S.), 541; 11 Ib. 673; 26 Ib. 274; 30 Ib. 576; 36 Am. & Eng. Rd. Cas. (N. S.), 636; 31 Ib. 776; 12 Ib. 14 and note; 22 Ib. 909; 70 Ark. 136.

7. Proof of a simple defect or imperfect operation of machinery is not sufficient evidence that the company had previous knowledge or notice of an alleged defect, imperfection or insufficiency in the machinery. 45 Ark. 567.

8. The cause should be reversed because of offensive language made use of by counsel in argument, of such character as that neither rebuke nor retraction could destroy its prejudicial influence. 70 Ark. 305; 75 Ark. 577; 74 Ark. 298; 76 N.W. 462.

J. N. Rachels and John T. Hicks, for appellee.

The question of assumed risk was fairly submitted to, and decided by, the jury. The testimony as to conversation with the manager was competent for the purpose of contradicting him, and the testimony as to the noise made by the machinery before and after the accident was admissible as a circumstance tending to establish the allegation that the machinery was carelessly and negligently handled and operated. Appellant can not complain of an instruction as to punitive damages, since none were awarded, and the instructions fairly submitted the law of the case to the jury.

OPINION

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

This is an appeal by the Stecher Cooperage Company from a judgment rendered against it for damages on account of the injury and death of J. W. Steadman, one of its employees. At the time of his injury Steadman was working at a machine called an edger. This machine had a wheel some four or five feet in diameter made of cast iron, with a steel rim around it to strengthen and hold it together, somewhat after the manner that the tire of a wagon wheel strengthens the wheel. Attached to this wheel were knives, the edges of the blades protruding about one sixteenth of an inch beyond the face of the wheel, and set so that a stave pressed against the side of the revolving wheel would be cut and trimmed into the proper shape by the knives. While Steadman was at work pushing staves against the wheel to cut them into shape it burst into fragments, which were thrown with great violence, some of them going through the top of the shed and falling several hundred yards away. Steadman was struck by a fragment of the wheel, and severely injured, so that he died about 24 hours afterwards from the effects of his injuries.

There is nothing beyond the fact that the wheel, while the machine was being operated, suddenly flew into fragments to show that the wheel was cracked or defective in any respect. The allegation in the complaint that the wheel was cracked and otherwise defective is therefore not...

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