Togo Gin Co. v. Hite

• Decision Date: 25 February 1935
• Docket Number: 4-3729
• Citation: 79 S.W.2d 262,190 Ark. 454
• Parties: TOGO GIN COMPANY v. HITE
• Court: Arkansas Supreme Court

79 S.W.2d 262

190 Ark. 454

TOGO GIN COMPANY v. HITE

4-3729

Supreme Court of Arkansas

February 25, 1935

Appeal from Cross Circuit Court; G. E. Keck, Judge; reversed.

Judgment reversed, and cause dismissed.

Walter N. Killough, for appellant.

Giles Dearing, for appellee.

OPINION

BUTLER, J.

The appeal prosecuted in this case involves the validity of the verdict and judgment for damages for personal injuries sustained by appellee while he was engaged in unchoking a gin stand. The appellant, Togo Gin Company, is engaged in ginning cotton, and the appellee was its superintendent and had been such for about two years before his injury, which occurred on September 27, 1933, and operated the ginnery according to his own judgment without interference by the company. Appellee had authority to employ and discharge the laborers at the gin. He also had general authority to purchase whatever was necessary to the operation of the gin. The power to run the gin was furnished by a Buckeye oil engine, which was purchased by the gin company when the gin was erected in 1928. This engine had been in use about a year before the gin company acquired it, and had been through a fire which damaged and destroyed some of its accessories. It was worked over by the manufacturer and sold to the gin company, and has been used in the operation of the ginnery since its installation. The machinery is so arranged that the power can be withdrawn from the gin stands without stopping the engine or removing the drive belts, which is done in the following way: on the drive shaft is a large wheel connected with the gin stands by a large belt. An instrument, called by the witnesses a "clutch" operated by lever, is so arranged that when it makes contact or engages with an appliance at the wheel the same is put in motion, thus conveying the power to the gin stands and causing the saws to revolve. By the use of the lever this clutch can be disengaged, and when this is done the machinery is "out of gear," thus removing the power from the gin stands which cease to operate.

On the day of the accident a bale of wet cotton was being ginned and the gin stand became choked; that is to say, lint cotton became impacted between the ribs of the stand through which the gin saws extended which interfered with their operation. Appellee undertook to unchoke the gin stand by raising the breast of the gin, thus removing the saws from between the ribs and taking the load from them. From the gin stand he went into the engine room which was only a few feet away, and operated the lever which disengaged the clutch. He then went back to the gin stand and with his fingers began to remove the cotton which had clogged the ribs. While thus engaged the gin saws moved, badly cutting his fingers and forearm, and resulting in a severe and permanent injury.

The appellee contends that, while he was at work unchoking the gin, the clutch, because of certain defects therein, became re-engaged throwing the machinery in gear and starting the gin saws to operate by which his hand was caught and mangled. With respect to the alleged defective condition of the clutch after the close of the cotton season of 1933-34, the evidence is in sharp conflict. A number of witnesses for the appellee testified to the effect that it was in a worn and defective condition, while others testified that it was not. There is no dispute in the evidence, however, that in the summer of 1933 the entire engine and its parts were gone over by all expert mechanic under the supervision of the appellee, and that at that time there were no defects in the clutch. Appellee testified that the machinery was not in operation until that September, and that the clutch became defective between the date of the beginning of the operation of the gin and the 27th of September. Much has been said in argument of counsel regarding the causes for the alleged defective condition of the clutch, but this is unimportant.

The appellee stated that the first time he became aware that the clutch was not properly functioning was about two weeks before his injury when he observed that when the gins were loaded the clutch would slip and not hold the machinery. He reported this condition to Mr. Fitzgerald Saturday night before his injury on Wednesday--told him the clutch was slipping and would not hold; that it needed new parts. Appellee stated that Mr. Fitzgerald replied "to go ahead" and that he (Mr. Fitzgerald) would have it fixed. Mr. Fitzgerald was one of the officers of the gin company and would visit the gin two or three times a week. He had never run a gin and was not a mechanic.

Appellee and a number of other experienced gin men testified that in all of their experience they had never known a clutch, after it had been disengaged so as to throw the machinery out of gear, to ever re-engage itself so as to again start the machinery in motion. The appellee, however, testified that, although he had never known such a thing to happen, he concluded that the machinery could only have been made to move by the re-engagement of the clutch.

After the accident the appellee's brother took charge of the operation of the gin, and operated it through the remainder of the ginning season without any notice being given to him of any defect in the clutch, and without any repairs to it being...