T. A. Thomas & Sons v. Wolf

• Decision Date: 30 May 1921
• Docket Number: 27
• Citation: 231 S.W. 195,149 Ark. 77
• Parties: T. A. THOMAS & SONS v. WOLF
• Court: Arkansas Supreme Court

231 S.W. 195

149 Ark. 77

T. A. THOMAS & SONS v. WOLF

No. 27

Supreme Court of Arkansas

May 30, 1921

Appeal from Clark Circuit Court; Joe Hardage, Special Judge reversed.

Judgment reversed and cause dismissed.

John H Crawford and Dwight H. Crawford, for appellants.

1. The court erred in refusing to direct a verdict for defendant. Wolfe was experienced, knew of the danger and assumed the risk. 90 Ark. 407; 96 Id. 387; 96 Id. 206; 108 Id. 483; 82 Id. 11; 68 Id. 316; 93 Id. 564; 101 Id. 197; 92 Id. 102; 95 Id. 560; 116 Id. 56; 118 Id. 304. See, also, 67 Id. 209; 226 S.W. 1055; 88 Am. St. 841; 158 Ind. 609; 92 Am. St. 319; 129 N.C. 173; 85 Am. St. 740; 101 Id. 945; 109 Id. 917. See, especially, 115 Wis. 332; 95 Am. St 947.

2. Appellee's second, third and fifth instructions were wrong and prejudicial.

3. The fourth was also wrong and prejudicial. 135 Ark. 341.

4. It was error to refuse the fifth and sixth instructions asked by appellant.

5. It was error to permit plaintiff to prove that there was a defective cable, because it was not shown that it was in any way connected with plaintiff's injury. 90 Ark. 210.

W. H. Mizell, for appellee.

1. The peremptory instruction was properly refused. The testimony of plaintiff was undisputed.

Statements by a person soon after an injury and while suffering from pain are entitled to slight credence and credit. 14 Ency. of Ev., p. 192. The citations of Arkansas cases by appellants do not sustain their contention. The only question is, did Wolfe assume the risk, and was he guilty of contributory negligence? We say he did not and was not. This case falls within the rule in 77 Ark. 367. See 110 Ark. 456; 77 Id. 367; 183 S.W. 189.

2. There was no error in the instructions given. Similar ones have been approved in the cases cited above.

OPINION

HUMPHREYS, J.

Appellee instituted suit against appellants, a partnership composed of T. A. Thomas and his sons, in the Clark Circuit Court, to recover damages in the sum of $ 8,500, on account of the loss of a log, occasioned through the alleged negligence of said appellants in providing a defective wagon from which, and a rough, sloping yard upon which, to unload logs.

Appellants filed an answer, denying that the injury resulted on account of their negligence, and interposed the further defenses of assumed risk and contributory negligence by appellee.

The cause was submitted upon the pleadings, evidence and instructions of the court, which resulted in a verdict and judgment in favor of appellee for $ 500. From the judgment, an appeal has been duly prosecuted to this court.

At the conclusion of the evidence, appellants requested the court to direct a verdict in their favor, which the court refused to do, over their objection and exception. Appellants now insist that the court committed reversible error in refusing to grant the request.

The facts necessary to a determination of this question are as follows: Appellee was forty-eight years of age and experienced in cutting and hauling logs. Appellants were operators of a sawmill. They employed appellee to haul logs to their log yard situated upon their tramway. They maintained a contrivance called a log boom in the yard for the purpose of pulling the logs by a wire cable from the yard and loading them upon the tramcars. The wire cable was short and this necessitated the unloading of the logs near the tramway. In loading the logs on the cars by this process, trash and dirt were drawn toward the tramway, which made the ground rough and sloping at that point. Nathan Thomas, one of the appellants, told appellee in unloading to drive as close to the track, or tramway, as he could conveniently do, so that the logs, when unloaded, could be picked up easily by the loader. Appellants furnished appellee an 8-wheel wagon, for the purpose of hauling the logs, which contained a defect in the front bumper block that caused the buck pin to stick, so that it had to be knocked loose with an ax in order to release, or throw out, the bumper block. The purpose of removing the bumper blocks was to permit the logs to be rolled off the wagon. The pin could have been removed with the use of a canthook by one standing at the front end of the wagon, or by going to a point between the front and hind wheels on either the upper or lower side of the wagon, or under the wagon. There was no danger incident to removing the pin by the canthook method or by pulling or knocking it out from the upper side or under the wagon, but there was great danger incident to removing it if standing on the lower side of the wagon. It was possible for an active, alert man without being injured to remove it while standing on the lower side of the wagon. The condition of the yard at the point where appellee was directed to unload the logs, as well as the condition of the bumper, was obvious and known to appellee. In obedience to instructions theretofore given, app...