Triangle Lumber Company v. Acree

• Decision Date: 20 April 1914
• Docket Number: 277
• Citation: 166 S.W. 958,112 Ark. 534
• Parties: TRIANGLE LUMBER COMPANY v. ACREE
• Court: Arkansas Supreme Court

166 S.W. 958

112 Ark. 534

TRIANGLE LUMBER COMPANY v. ACREE

No. 277

Supreme Court of Arkansas

April 20, 1914

Appeal from Grant Circuit Court; W. H. Evans, Judge; reversed.

STATEMENT BY THE COURT.

Appellee recovered damages against appellant for personal injuries sustained by him while in its employment. He alleged, as his cause of action, that on July 9, 1912, and prior thereto, he was employed by appellant as fireman of an engine which ran a skidder machine that was used to drag logs from the woods that the logs were dragged by fastening tongs into them; but the appellant negligently failed to provide good, safe and secure tongs with which that work could be performed; but furnished to its employees, so engaged, unsafe, defective and insecure tongs, of which fact the appellant had notice; and that the engineer operating the skidder machine, knowing appellee to be in a place of danger, where he was liable to be injured by said tongs pulling out of the logs negligently, carelessly and wrongfully so operated his engine that said tongs were pulled out of the log and thrown a distance of thirty yards against appellee's leg, breaking both bones about four inches above the ankle; that the bones protruded through the flesh and were driven into the ground and that appellee suffered and now suffers great pain and agony, and that he is permanently disabled as a result of his injury, and he prayed judgment for $ 20,000 damages.

Appellant admitted that appellee was employed as fireman of the engine which operated the skidder, but denied that it was careless or negligent in providing unsafe and defective or insecure tongs, and denied that the said engineer operated the engine negligently, carelessly or wrongfully, and alleged the fact to be that the engineer had no knowledge of appellee's position at the time of his injury; and that appellee had unnecessarily and voluntarily gone to a place where his duties did not require him to go, and where the engineer did not anticipate he would be; and that appellee was guilty of contributory negligence in unnecessarily exposing himself to danger. That appellee knew the hooks frequently pulled out of the logs, and were likely to do so at any time; but that appellee had no duties, the performance of which would expose him to danger on that account. Appellant also plead assumption of risk and denied the permanency of appellee's injury.

The skidder is a machine used for loading logs and is mounted on a car which runs on a railroad track. The material parts of the machine are the boiler, engine and the drum, upon which the cable is wound. This cable is unwound and pulled out into the woods on one side of the track, and the tongs are fastened to a log and the end of the cable is attached to the tongs. The engineer starts the drum to turning and winds up the cable, and in this way the logs are pulled up to the track where they are loaded on the cars. The tongs are two curved pieces of steel fastened together with a rivet, such as are used by ice men and others. At the time of the accident in question, the leverman or engineer started the drum and the log, which was being pulled, struck a stump, as very frequently happened; and in such cases it was customary where it was necessary to do so, to pull the log end ways to enable it to pass the obstruction, and sometimes this result could be accomplished by a second pull on the cable. There were four men engaged in these logging operations. One man carried out the cable and tongs and fastened them to the logs; the flagman, stationed where he could see both the leverman and hooker, and whose duty it is to signal when the log is ready to be skidded to the track; the leverman or engineer, and the fireman, whose duty it was simply to keep up steam.

Appellant insists that appellee would have been in no danger, and would not have been injured had he remained in the place provided for him in the discharge of his duties. Appellee testified and is corroborated by the testimony of other witnesses, that it was his duty to fire the engine, and that he started for a load of coal, when he stopped at the water keg to get a drink of water. This water keg was in the shade of a small sapling, and appellee stood there for a very short time after he had gotten a drink of water, and while he was thus standing there, some one hallooed at him, when he jumped from the place where he had been standing, but unfortunately jumped in the wrong direction, and was struck by the tongs torn loose from the log to which they had been fastened, and which were hurled through the air.

Appellant asked an instruction numbered 3, which reads as follows:

"It was the duty of plaintiff to exercise proper care for his own safety, and if you believe from the evidence that plaintiff got down from the engine upon which he was employed, and walked and stood seven to ten feet in the direction of the cable and the hooks thereto attached, which were being operated for the purposes of loading logs at the skidder, and further that plaintiff was not within the line of his employment, and that he voluntarily placed himself in this position of peril, then he is guilty of contributory negligence, and can not recover in this action, even though you should find that defendant was negligent in the selection of its tools or implements, or in the operation of same."

But this instruction was refused, as asked, and was modified by the court and given, and as thus modified, read as follows:

"It was the duty of the plaintiff to exercise ordinary care for his own safety, and if you believe from the evidence that plaintiff got down from the engine upon which he was employed, and walked and stood seven to ten feet in the direction of the cable and the hooks thereto attached, which were being operated for the purpose of pulling logs to the skidder, and that a person of ordinary prudence would not have done so, and further that plaintiff was not within the line of his employment, and that his doing so placed him in a position of peril, then he is guilty of contributory negligence, and can not recover in this action, even though you should find that defendant was negligent in the selection of its tools or implements, or in the manner of doing the work." Appellant duly saved his exceptions to this modification.

Appellee testified that he had suffered great agony as a result of his injury, and had also sustained a loss of earning capacity. He introduced Dr. C. E. Bentley, who testified that he lived in Little Rock, and had had vast experience in surgical operations, that he had met and examined appellee a few days before he was called as a witness, and that he made a physical and x-ray examination at the time, and that appellee had an ununited fracture of the large bone of the leg, and that a cure could never be effected until another operation was performed, and that the injured leg was then a half-inch shorter than the other, and after the operation, would be an inch shorter. A Dr. J. B. Shaw expressed substantially the same opinion.

Appellant offered to introduce Dr. W. P. Clark of Pine Bluff, but it was admitted that appellee had been brought to the Davis Hospital in Pine Bluff after his injury, and had there been attended by Doctor Clark. Appellant also offered as witnesses, Doctors Butler and Jones, who had also treated appellee, but objection was made to their testifying, and the objection was sustained. Appellant then offered the three last named doctors as expert witnesses concerning the appellee's injuries. The court sustained the objection of appellee to this testimony. It was then agreed by the parties, and the court, that appellant need not actually place said witnesses on the stand, but might prepare questions and answers, and insert them in the bill of exceptions, and that all of said questions and answers should be considered objected to, and the objections sustained and exceptions saved, just as though each witness was put on the stand and the questions actually asked.

Appellant requested that said doctors be permitted to examine appellee during the trial, and testify regarding his injuries, but the court refused to permit this to be done.

Judgment reversed and cause remanded.

Roscoe R. Lynn, for appellant; Cockrill & Armistead, Crawford & Hooker, Danaher & Danaher, and W. D. Brouse, of counsel.

1. The evidence is not sufficient to sustain appellee's allegations of negligence, either that the tongs were defective, or that McGarrity, the leverman, knowing appellee's position, negligently operated the skidder.

The happening of the accident, or the flying out of the tongs, raised no presumption of negligence. Where it is merely a matter of conjecture as to what caused an accident, there can be no recovery. 105 Ark. 161.

There is no evidence that the leverman knew where appellee was at the time he attempted to haul in to the track, and the evidence fails to show that he was negligent in operating the machine.

Under the facts as testified to by appellee's own witnesses, the danger was one which he assumed as a matter of law. If he did not realize his danger, it was because he failed to give proper attention to his surroundings. 3 Labatt, Master and Servant, 1246.

2. Instruction 3 should have been given as requested by appellant. As modified and given, it became merely an instruction on contributory negligence, and entirely eliminated from the instruction the rule that, "A servant who is injured while in a place where his duties do not require him to be, can not recover, for the reason that the obligations of his master do not follow him into such a place, or inure to his benefit while he is in it." 3 Labatt, Master and Servant, § 1253; 4 Id., § 1558-b, and cases cited; 40 A. 500; 102 S.W....