Trumbull v. Martin

• Decision Date: 23 December 1918
• Docket Number: 46
• Citation: 208 S.W. 803,137 Ark. 495
• Parties: TRUMBULL v. MARTIN
• Court: Arkansas Supreme Court

208 S.W. 803

137 Ark. 495

TRUMBULL v. MARTIN

No. 46

Supreme Court of Arkansas

December 23, 1918

Appeal from Polk Circuit Court; W. C. Rodgers, Special Judge affirmed.

STATEMENT OF FACTS.

This is an action by the appellee against the appellant to recover damages for personal injuries. Appellee alleged that on December 26, 1916, he was in the employ of the appellant, and under the direction of his foreman was at work at the appellant's stave mill at Mena, in Polk County, Arkansas. He was working at what is known as the cut-off saw; that the saw was defective in that it had a crack or flaw in it; that it was being run at a high rate of speed and on account of the defective condition, it broke in pieces and some of the fragments struck the plaintiff with great force producing severe injuries, which are specifically described in the complaint; that the appellant was negligent in directing the plaintiff to work at the saw in its defective condition and was negligent in running the same at a high rate of speed. The appellee alleged damages in the sum of $ 5,070 for which he asked judgment. The appellant denied all the material allegations of the complaint and set up the defenses of contributory negligence and assumed risk.

The testimony on behalf of the appellee was substantially as follows: On December 26, 1916, the appellee was in the employ of the appellant cutting slabs at the cut-off saw. The saw burst and a piece of it struck the appellee on the arm cutting the muscle. The foreman, Willis Jones, directed the appellee to work at the saw. When he went to work the saw was in motion; it was on a steel frame; was easy to run and not hidden. The frame ran up above the saw and came over. Appellee was not cautioned about the condition of the saw. Appellee knew how to put the slabs on the board and how to feed the saw. He was not throwing the slabs at the saw.

Another witness testified that he had worked at the appellant's mill; had seen the cut-off saw after the injury. He had seen the same saw before if they had not changed it; had worked at the saw a short time before the injury. When he quit work the saw was burst and a hole bored in it. At that time it was burst about six inches. The flaw extended from the outside. After the hole was bored in it, the saw was put back on. The hole was bored at the inside of the crack toward the shaft. It was a small hole and the crack fit together and left no opening. It would take close observation to discover the crack. It could not be seen when the saw was revolving. Witness saw the pieces of the saw that burst after the injury. They looked to him like the same saw, but it was not on the same shaft and not in the same place. He did not know whether the saw was changed or not. The saw which had a crack in it was in a frame. A shaft went through and there was a saw on each end of the shaft. These saws were about of the same diameter. He did not know whether the appellee was injured at the equalizing saw or not, but it was one of the two equalizing saws that was cracked. The saw that broke off came from the same shaft that the witness worked at and was the saw that had the flaw in it.

Another witness testified that he went to the mill a few days after the accident and found the frame and some of the pieces of the broken saw. The pieces shown him were not pieces of a new saw unless it had had mighty rough usage. The teeth seemed to have been filed considerably and there were rust spots on the edges of one or two pieces of the saw. The saw had been badly broken into small pieces. Witness could not tell what portions of the saw were there, but all of the saw was not there.

There was further testimony tending to show that when there was a saw on both ends of the shaft they were called equalizing saws, and when a saw was used only on one end it was called a cut-off saw. When the appellee was working there, the saw was on the left-hand side or end of the shaft and the appellee called it a cutoff saw.

There was testimony on behalf of the appellant tending to show that the saw that injured the appellee was "a brand new saw with no flaws or cracks in it;" that the breaks were fresh; that the mill at the time of the injury was being run at the ordinary speed and that such speed was not sufficient to break the saw; that there was no defect about the saw or the frame at which the appellee was working; that there was a slab lying there after the injury, cut about half off and the cut that went into the slab showed that the saw had been kinked, which threw the side of the saw against the iron frame and which had cut into the frame half an inch deep, and that was what caused the saw to break. The dents in the wood showed that it had pulled the saw to one side. Other witnesses on behalf of the appellant tended to corroborate his testimony.

The appellee introduced testimony in rebuttal tending to show that there had been no kink in the saw as shown by the cut in the piece of timber that was being run through the saw at the time of the accident; that the pieces of broken saw were not the pieces of a new saw; that the teeth were somewhat worn and had been filed. One of the witnesses in the rebuttal testified that he was at the place of accident soon after it occurred and saw the pieces of the saw; they were rusty and old looking. Witness did not notice the teeth. After the above witness was excused, the record recites: "By consent of both sides, the jury at this point go out and view the frame and saw thereon." After the jury returned to the box, witness, W. M. Martin, was recalled and was asked the following question: "Q. State whether or not the machine on which the plaintiff was hurt is in the same condition as it was in after the injury. A. It is." The appellant was also recalled and was asked the same question and gave the same answer.

The court instructed the jury and they afterward returned a verdict in favor of the appellee. The appellant moved for a new trial. One of the grounds of motion for a new trial was the alleged misconduct of the jury as follows: "Instead of viewing the frame and the cylinder and the saw as it appeared set in the same, the jury took said cylinder with the broken saw firmly clasped therein and fastened by a large nut and carried the same to a blacksmith shop about a block away from the court house, and had the blacksmith unscrew the nut and open up the cylinder and take out the piece of broken saw." Other facts will be stated in the opinion.

Judgment affirmed.

James B. McDonough, for appellant.

1. The jury was guilty of misconduct in opening the saw and using the same as evidence. They were sent out to view the frame on which the saw was fastened and nothing else. They were guilty of prejudicial misconduct. Kirby's Digest, § 6197; 67 Ark. 263; 74 Id. 19. Evidence cannot be introduced outside the court room. Kirby's Digest §§ 3146 to 3149, etc. See also Jones on Ev., § 407; Wigmore on Ev., vol. 3, § 1802; 6 Humphrey 275; 88 N.W. 272; 74 P. 418; 164 Id. 1020.

2. There is no substantial evidence to support the verdict. A mere scintilla is not sufficient. 114 Ark. 112. Conjecture and speculation, however plausible, cannot supply the place of proof. 113 Id. 353; 116 Id. 82; 108 Id. 8; 117 Id. 638. Substantial evidence is necessary. 122 Id. 445. This is lacking. 109 Id. 206; 46 Id. 555; 47 N.E. 104. See also 77 Id. 883; 70 N.W. 1103; 118 Mich. 275; 173 Mo 524. The doctrine res loquitur ipsa does not apply. 101 Ark 117, etc.

3. It was an abuse of discretion to refuse a continuance. 71 Ark. 62; 21 Id. 460; 85 Id. 334.

4. The court erred in excluding the evidence of John Johnson. It was material and clearly admissible. 57 Ark. 387; Ib. 512; 59 Id. 140; 62 Id. 254; 89 Id. 261; 191 S.W. 924; 81 Ark. 604; 78 Id. 147; 95 Id. 284.

5. It was error to give instruction No. 1. There was no evidence upon which to base it.

6. There was error in giving Nos. 2 and 3. No. 2 is abstract and No. 3 assumes negligence. 80 Ark. 260; 115 Id. 351; 118 Id. 304; 95 Id. 29. No. 4 emphasizes the alleged duty of the master to furnish safe appliances--not to use ordinary care to furnish a reasonably safe place. Cases supra.

7. It was error to give Nos. 5, 6 and 7, and to refuse defendant's Nos. 1 and 4. 157 Ind. 509; 159 N.Y. 548; 55 A. 681; 77 N.Y.S. 669; 173 Ill.App. 431.

Pole McPhetridge and J. I. Alley, for appellee.

1. There was no misconduct of the jury. But if there was appellant cannot complain. It was by consent of counsel. They were kept together, made the view and were guilty of no misconduct. If there was any error it was invited. 67 Ark. 265. See also 74 Id. 19.

2. The evidence is sufficient to support the verdict. The question of negligence and assumed risk were properly submitted to a jury. 93 Ark. 191; 96 Id. 394; 95 Id. 560; 103 Id. 231; 91 Id. 337.

3. The court did not abuse its discretion in refusing a continuance on the showing made. 61 Ark. 88; 71 Id. 62.

4. John Johnson's testimony was properly excluded. He was not an expert and the question asked called for a conclusion of the witness. The question was leading and suggestive.

5. There was no error in the instructions. They state the law and the objections were general. 87 Ark. 396. The duty of the master is clearly defined and they were not prejudicial.

Jas. B. McDonough, for appellant, in reply.

1. The case in 74 Ark. 19 is conclusive as to the view.

2. The evidence wholly fails to show a defect in the saw. Negligence must be proved. If more than one conclusion is permitted by circumstantial evidence, it is insufficient. 154 N.Y. 90; 55 Kans. 600. Negligence must be proved and the burden is on plaintiff. Kirby's Digest, § 3147; 79 Ark. 608; 97 Id. 469; 100 Id. 462.

3. As to presumptions and conjectures,...