Temple Cotton Oil Co. v. Skinner

• Decision Date: 30 January 1928
• Docket Number: 147
• Parties: TEMPLE COTTON OIL COMPANY v. SKINNER
• Court: Arkansas Supreme Court

2 S.W.2d 676

176 Ark. 17

TEMPLE COTTON OIL COMPANY v. SKINNER

No. 147

Supreme Court of Arkansas

January 30, 1928

Appeal from Hempstead Circuit Court; James H. McCollum, Judge reversed.

STATEMENT OF FACTS.

This was an action by Gordon Skinner against the Temple Cotton Oil Company to recover damages for a personal injury, which, he alleges, was caused by the defendant's negligence while he was engaged in the performance of his duties as a servant of said company.

According to the testimony of Gordon Skinner, he was twenty-five years old on the 15th day of October, 1926. He was injured on the 1st day of May, 1926, while engaged in loading meal and hulls on local orders for the Temple Cotton Oil Company at its cotton mill at Hope, Arkansas. He had been employed by said company since August, 1925. His duties were loading out meal and feeding the hull bran machine. He did not stack any hulls. In March, 1926, he was moved to the warehouse to load out cottonseed meal on local orders. He was engaged in this work at the time he was injured. Whenever a ticket was brought from the office, it was his duty to fill the order called for by the ticket. The instructions were indicated on the ticket. He loaded out the orders, with the help of the driver who came for the meal. For convenience in loading out the meal, different grades of meal were stacked separately in different parts of the warehouse. Each section had its stacks between a row of posts about sixteen feet apart. The method of stacking in the sections was to begin at the wall of the warehouse at which were laid lengthwise six sacks of cottonseed meal against the wall on the south for support. In like manner the sacks were placed on the top of each other to a height of about twenty feet. The same process was adopted in placing other sacks against these which were piled next to the wall. After the sacks reached a height of about seven or eight feet, they were jammed against each other for the purpose of tying them and thus rounding out the section. The first tier of sacks was piled to its full height against the wall, and the rest of the sacks of meal were piled down somewhat like stairsteps to the front for the purpose of better enabling the servants to handle the same while stacking or unstacking them. The section consisted of six tiers, each running from the aisle in the center of the warehouse back to the south wall. The sacks in each tier were first unloaded.

The accident occurred about 1:30 P.M. According to the plaintiff's testimony, he had taken the sacks from a tier in the back against the wall. There was a sack lying off to one side, and the plaintiff was trying to get it, when a pile in another section fell on him. None of the sacks had been taken off of the stack that fell on the plaintiff. The plaintiff did not examine the stacks for the purpose of seeing whether they were stacked properly, and it was not his duty to do so. He had not noticed that there was any defect in the stacking of the pile of sacks of meal that fell on him. The plaintiff was severely injured, and suffered great pain for a long time. According to the evidence of physicians in his behalf, he was permanently injured.

Webber Skinner, a brother of the plaintiff, was also a witness for him. According to his testimony, he was working at the oil mill of the defendant in what was known as the shaker room at the time his brother was injured. As soon as he heard of the injury to his brother, he ran to him. They had taken the sacks of meal off of his brother and had laid him out in the aisle when he got there. Witness saw the stack from which the sacks of meal had fallen on his brother. He was asked to tell how it was stacked, and we copy from the record his testimony on this point as follows:

"A. It was stacked kindo' looped in front, and another part here stacked up against the walls; stacked properly part of the way, but on top looked like it was just throwed up there. Q. It was stacked up how high? A. About fourteen or fifteen sacks high. Q. You say on top it was just laid crossways on one another? A. Yes sir. Q. Wasn't stacked properly? A. No sir."

The witness said that the defect in stacking the sacks of meal could not have been noticed unless a close examination was made. He also testified that he knew when piles of sacks of cottonseed meal were stacked properly. He had never stacked sacks of meal, but he had seen them stacked, and knew how it ought to be done.

According to the evidence introduced by the defendant, the different tiers of meal in sacks were stacked properly, and the plaintiff was injured by sacks falling down from the section from which he was taking a sack of meal for the purpose of loading it for a customer.

The jury returned a verdict for the plaintiff in the sum of $ 8,000, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

Judgment reversed and cause remanded.

O. A Graves, T. D. Wynne and Charles A. Miller, for appellant.

William F. Denman, for appellee.

OPINION

HART, C. J., (after stating the facts).

It is first earnestly insisted that the court erred in not directing a verdict for the defendant. In making this contention, counsel claim that the court should have told the jury as a matter of law, under the evidence introduced, that the plaintiff assumed the risk. This court has so often said that the employee assumes all risks naturally and reasonably incident to the services in which he engages, where the hazards of the service are obvious and within the apprehension of a person of his experience and understanding, that a citation of authority is hardly necessary. In short, by the contract of service, the servant agrees to bear the risk of all the ordinary dangers incident thereto, and he therefore cannot recover for an injury resulting therefrom. C. R. I. & P. Ry. Co. v. Grubbs, 97 Ark. 486, 134 S.W. 636, and cases cited.

In asking for a directed verdict, counsel for the defendant relied expressly upon Arkansas Cotton Oil Co. v. Carr, 89 Ark. 50, 115 S.W. 925, and Francis v. Arkadelphia Milling Co., 153 Ark. 236, 239 S.W. 1067. We do not consider these cases as conclusive that the plaintiff assumed the risk.

In the Carr case the servant was engaged in moving stacks of meal from a pile for the purpose of loading them on railroad cars, and was injured by other bags on the same pile falling on him. He was held to have assumed the risk because the undisputed facts showed that the servant was injured while in the discharge of his duties, which required him to constantly change the condition of the working place. In that case the nature of the work in removing sacks made the working place more or less dangerous, and it was the duty of the plaintiff to make close examination of the place to see that it was safe. In the case at bar, the servant was injured by a sack from a different pile falling upon him. He was not required to make an examination of his working place in order to see that it was safe. He was not changing the condition of the working place at all. The danger was created by the acts of other servants in piling the sacks of meal, and it did not result from the act of the servant in removing a sack from the pile of sacks filled with cottonseed meal which fell upon him.

In the Francis case, the court said that the undisputed facts showed that the danger was so patent and open that it might have been noticed by casual observation. The pile of sacks of meal was not only perpendicular, but was leaning or bulging out at the top. The plaintiff was familiar with the place where he was working, and the condition in which the sacks were left through the negligence of the employees of the defendant was obvious and evident to any one working around the stacks of sacks. We cannot say that this is a matter of law here. According to the evidence of Webber Skinner, the pile of sacks of cottonseed meal which fell and injured the plaintiff was not properly stacked. On the top it looked like the sacks were just thrown up there and were not placed close together as they should have been. The defect was one that was not observable unless a close examination was made. The plaintiff had nothing whatever to do with stacking the sacks of cottonseed meal, and it was not his duty to...