Temple Cotton Oil Co. v. Brown

Decision Date23 October 1939
Docket NumberNo. 4-5570.,4-5570.
Citation132 S.W.2d 791
PartiesTEMPLE COTTON OIL CO. v. BROWN.
CourtArkansas Supreme Court

Appeal from Circuit Court, Clark County; Dexter Bush, Judge.

Action by Jack Brown against the Temple Cotton Oil Company for injuries suffered while employed by defendant. From a judgment on a verdict for plaintiff, defendant appeals.

Reversed and case dismissed.

Steve Carrigan, of Hope, for appellant.

J. H. Lookadoo, of Arkadelphia, for appellee.

McHANEY, Justice.

Appellee brought this action in December, 1938, against appellant in the Clark Circuit Court to recover damages for personal injuries which he alleges he sustained in October, 1937, the exact date on which he was injured not being stated, while employed as ginner by appellant in its cotton gin at Fulton in Hempstead county.

Sometime in October, 1937, a drive shaft on the engine broke, necessitating a shutdown of the gun. It became necessary to remove this drive shaft, to which was attached a large pulley, and send it to a machine shop in Hope, Arkansas, to be repaired. When a break down occurred all the employees were used to assist in making repairs. When the drive shaft broke as above stated, appellee and the other employees were used in taking it down and in loading it in a truck for shipment to Hope. It was repaired and brought back from Hope by the machine shop there on the late afternoon or evening of the next day, and appellee and others assisted in unloading and installing the drive shaft and pulley in place. It was about 8 o'clock at night when they unloaded and carried or rolled it around the engine to lift it up and put it in place. His amended complaint states: "That as the plaintiff and these other employees of the defendant started carrying this heavy pulley around the end of the large engine, which was the only way possible for them to take it to the place where it belonged, to be installed and just as they were going around the end of the large engine the plaintiff stepped on some oil and slipped and injured himself. That it was dark in this engine room where the plaintiff was walking, carrying part of this heavy load referred to above, for the reason that there was only one light in the room and it was on the other side of the engine and the shadow of the engine and drive wheel made it dark so that the plaintiff could not see what he was stepping on or into; that he stepped on some oil that had carelessly and negligently been left on the floor by the defendant and that this oil had been there for several hours and plaintiff's stepping on this oil and slipping caused him to be injured as alleged in his complaint and also as will be set out further on in this amendment to plaintiff's complaint."

The leaving of the oil on the engine room floor is the negligence relied on for a recovery in this action. As a result of his stepping in the oil and slipping, he alleged that he suffered many injuries, which he sets out in detail and which resulted in his being totally and permanently disabled, to his damage in the sum of $50,000. The answer was a general denial of all allegations, a specific denial that he was injured or that he suffered any damages therefrom, and a plea of assumption of risk and contributory negligence.

Trial resulted in a verdict and judgment against appellant for $10,000, hence this appeal.

We think the court erred in refusing to direct a verdict for appellant at its request for any one of two or three reasons: (1) That no actionable negligence is shown; and (2) that if so, appellee assumed the risk as a matter of law; and (3) that he suffered no substantial injury.

1, 2. Let it be assumed that there was some oil on the floor of the engine room of the cotton gin and that the foreman had given general instructions to keep the floor clear of oil. It is not unusual, indeed it may be said to be the usual thing, to find more or less oil or grease on the floor of the engine rooms of all cotton gins. The engine operated by appellant was a well known make of open crank case engines, and such engines do throw out some oil. But this fact must have been well known to appellee as he was frequently in and about the engine room, had worked at this gin one or two seasons before the 1937 season, and assisted in removing the drive shaft the day before. So, it is difficult to see that appellant was negligent because its employee in the engine room had not mopped up the oil which appellee says he stepped in, even in violation of instructions so to do. But, assuming that this was negligence, or that the jury was justified in so finding, we think appellee must be held to have assumed the risk of injury caused by slipping in the oil. If it was there, it must have been there the day before, because the engine had not been operated since the break-down. Appellee assisted in removing the drive shaft the day before in broad open daylight. He assisted in putting it back in place about eight or nine o'clock at night, but the undisputed proof shows that engine room was electrically lighted — whether one or two lights is in dispute. If oil was on the floor, it was perfectly open and obvious. He says himself that he did not look, but if he had he could have seen it, if it was there, and he must have seen it the day before, if he had looked. The drive shaft was brought back by him and the others over the same route through the engine room over which it was removed the day before. It was testified to by the machinist, and not denied by anyone, that he brought a double light socket and an extension cord back with him, and that he plugged in the extension line in the double socket to give an extra light on the side the men were working on, which made three lights.

Under this state of facts we think this case is ruled adversely to appellee by such cases as Missouri Pac. R. Co. v. Lane, 186 Ark. 807, 56 S.W.2d 175; St. Louis-San Francisco R. Co. v. Burns, 186 Ark. 921, 56 S.W.2d 1027; Missouri Pac. R. Co. v. Martin, 186 Ark. 1101, 57 S.W.2d 1047; St. Louis S. F. Ry. Co. v. Ward, 197 Ark. 520, 124 S.W.2d 975, Jan. 16, 1939; and Missouri Pac. R. Co. v. Vinson, 196 Ark. 500, 118 S.W.2d 672. It is not shown just how much oil was on the floor, whether much or little, but whatever it was it was open and obvious. In Missouri Pac. R. Co. v. Lane, supra, we quoted from Mississippi Power Co. v. Hubbard, 181 Ark. 487, 26 S.W.2d 118, and, after stating the rule that employees do not assume risks created by the negligent act of the master, and that he has the right to require the master to provide a safe place to work, the opinion in that case said [186 Ark. 807, 56 S.W.2d 176]: "`But it is equally true that where the danger arising from the negligent conduct of the master is so apparent and obvious in its nature as to be at once discoverable to one of ordinary intelligence, an employee, by voluntarily undertaking to perform his work in such a situation, assumes the hazards which exempts the employer from liability on account of injury to the employee. Wisconsin & Arkansas Lumber Co. v. McCloud, 168 Ark. 352, 270 S.W. 599; Chicago, R. I. & P. R. Co. v. Allison, 171 Ark. 983, 287 S.W. 197; Ward Furniture Mfg. Co. v. Weigand, 173 Ark. 762, 293 S.W. 1002.' Other recent cases on the subject are Howell v. Harvill, 185 Ark. 977, 50 S.W.2d 597 and Koss Construction Co. v. Vanderburg, 185 Ark. 316, 47 S.W.2d 41.

"No one knew how the oil happened to be on the top of the tank, whether it had sloshed out of the tank car through the dome, or whether it had been spilt there by the oil company, from whom it was purchased, in loading it; but this can make no difference. The undisputed proof shows that it was quite the usual thing for oil to be on top of such cars to the knowledge of appellee, and he could not blindly step therein under the circumstances of this case without assuming the risk of so doing."

So, here, appellee must be held to have assumed the risk of the oil being on the floor, even assuming that appellant was negligent in so leaving it.

(3) Appellee has recovered a large judgment, $10,000, and it is difficult to understand how the jury could have so found under the evidence, or how the trial court permitted it to stand.

After his alleged injury, he continued to work during the remainder of that ginning season, or until about Christmas without losing a day on account of any injury. He made no claim for an injury. He did not consult a physician. After the ginning season was over, he did other work, performed his duties as a peace officer in Fulton, and when the ginning season opened in the fall of 1938, he again worked for appellee as cotton baler until he received two other injuries on the same day, which hurt his back "over again". Regarding the first accident in 1938, he said: "There was a big bale of cotton in the press and I started to unbuckle it and when there is a big bale in the press, it kicks, and when it kicked it gave me a twist and hurt my back over again." As to the second injury on the same day he said, in explaining how it happened: "I was lifting a bale of cotton and stepped in a crack." He makes no claim for these two injuries. It would appear to the ordinary person that if he received the injuries to his back of which he complains, such as to render him totally and permanently disabled, he would have known about it at once and would not have been able to continue to do the work he did do thereafter and until his third injury in 1938. The necessary inference is that he was not so disabled.

For the error in refusing to direct a verdict for appellant, the judgment will be reversed, and, as the case appears to have been fully developed, it will be dismissed.

HUMPHREYS, MEHAFFY, and BAKER, JJ., dissent.

MEHAFFY, Justice (dissenting).

The opinion of the majority states: "We think the court erred in refusing to direct a verdict for appellant at its request...

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