Warren Vehicle Stock Co. v. Siggs
| Citation | 120 S.W. 412 |
| Parties | WARREN VEHICLE STOCK CO. v. SIGGS. |
| Decision Date | 14 June 1909 |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Bradley County; H. W. Wells, Judge.
Action by Joe Siggs against the Warren Vehicle Stock Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.
Purcell & Bradham and Murphy, Coleman & Lewis, for appellant. Hersing & Williams, for appellee.
The plaintiff Joe Siggs instituted this suit against the defendant the Warren Vehicle Stock Company, to recover damages in the sum of $2,500 for a personal injury which he alleged was received by him through the negligence of the defendant, while he was in its employ. The evidence tended to establish the following facts: The defendant owns and operates a sawmill plant; and on January 6, 1907, it employed the plaintiff to perform various duties about the plant, and for five or six days the plaintiff worked as second off-bearer at the saw, and for three or four days prior to the day of the injury, and on the 23d day of January, 1907, the day of the injury, he was employed as first off-bearer at the saw. He was 51 years old, but an awkward and inexperienced workman. He was ignorant of the manner of doing the work of first off-bearer at the saw, and had never done service in that employment before. Some years before the injury involved in this case was received, his eyesight became greatly impaired, so that at the time of the injury herein his sight was very defective. When the defendant's foreman employed him to do the work of first off-bearer, the plaintiff told him that his eyesight was defective, and the foreman assured him that he could do the work safely, and that he only wanted him to do that work for a short time, when he would get another man. The evidence also tended to show that the foreman knew of plaintiff's inexperience in the performance of the duties of this work. The plaintiff testified that he was not instructed as to the manner in which he should do the work of first off-bearer, and that he was not warned of the dangers incident to the work. In the performance of the duties of this work the rule was that the workman should not put his hands within 18 inches of the saw, and should not take hold with his hands of slabs that were as short as 6 feet; but the plaintiff received no instructions as to this. On the day of the injury the plaintiff was working at a circular saw at the rear of which was a circular splitter. On this occasion 6-foot hickory logs were being sawed into slabs, and, as a slab was passing through the saw, it either got caught between the splitter and saw, or was falling, and the plaintiff attempted to take hold of it with his hand. His hand missed the slab and came in contact with the saw, which cut off two of his fingers. Several instructions were given at the request of the plaintiff, amongst which was the following: "(3) The court instructs you that, if you believe by a preponderance of the evidence in this case that plaintiff, Joe Siggs, was employed by defendant, Warren Vehicle Stock Company, through any if its agents having authority to employ laborers, and that he was assigned to perform the services of the first off-bearer at defendant's mill plant, and that the said services were attended with great or unusual dangers, and that plaintiff, Joe Siggs, on account of weakness of his eyesight, or from any other mental or physical defect, was incapable of detecting and appreciating the dangers and perils incident to the employment, and from weakness of his eyesight, or other mental or physical defect, he was not conscious of the constant danger he was in, and was not aware of how close he placed his hands to the circular saw, or other dangerous machinery, and that he did not know he was unfit to discharge the duties to which he was assigned, on account of his weak eyes or other infirmity, and that defendant, Warren Vehicle Stock Company, discovered his unfitness to do the work around such dangerous machinery, or could have discovered plaintiff's unfitness for the service by using that amount of care and oversight which a prudent man would exercise in his superintending control over his servants engaged in the discharge of duties attended with great or unusual dangers, and that defendant, after discovering plaintiff's unfitness for the service, or after it could have discovered his unfitness for the place by a proper exercise of its superintending control over him in that degree exercised by prudent business men over their servants engaged in duties attended with great or unusual dangers, and did not remove him from the place of danger, nor notified him of his unfitness for the work, and of the danger he was in, but permitted him to remain there, under the circumstances, until he was injured, as alleged in the complaint, on account of defendant's neglect of such duty, then the court instructs you that for such neglect defendant is liable, and it makes no difference if plaintiff was guilty of contributory negligence in the case of his injury under the circumstances." To the giving of this instruction the defendant duly saved its exceptions. A number of instructions were given at the request of the defendant, amongst which was the following: The jury returned a verdict in favor of the plaintiff for $200, and from the judgment entered thereon the defendant brings this appeal.
It is urged by the defendant that the injury which was received by the plaintiff was due to the risk which is ordinarily incident to the service in which he was engaged, and which was therefore assumed by him, and also that the undisputed evidence shows that the injury was occasioned by the negligence of the plaintiff. It is true that usually the servant assumes the risks that are ordinarily incident to the service in which he is employed. But this is not true of a servant who, because of his inexperience or some known physical infirmity, does not know or appreciate the dangers of the service. It is the duty of the master to see that the servant is competent for his position. There is an obligation resting on the master to see that the servant possesses the ordinary mental and physical qualifications which will enable him to do the work without exposing him to greater dangers than the work necessarily entails. If the master knows that the servant, by reason of his ignorance or inexperience, is unable to appreciate the dangers of the employment, it is his duty to give him such instructions and warning of the dangers incident to the work as will reasonably enable such servant to understand the duties of the work required and its perils.
As is said by Judge Battle in the case of St. Louis, I. M. & S. Ry. Co. v. Inman, 81 Ark. 591, 99 S. W. 832: "It would be a breach of his duty to expose a servant who, by reason of his youth or inexperience, is not aware of, or does not appreciate, the danger incident to the work he is employed to do, or the place he is engaged to occupy, without first giving him such instructions and caution as would, in the judgment of men of ordinary minds, understanding, and prudence, be sufficient to enable him to appreciate the dangers and the necessity for the exercise of due care and caution, and to do the work safely, with proper care on his part." Fones v. Phillips, 39 Ark. 17, 43 Am. Rep. 264; Ft. Smith Oil Co. v. Slover, 58 Ark. 168, 24 S. W. 106; Ford v. Bodcaw Lumber Co., 73 Ark. 49, 83 S. W. 346; King-Ryder Lumber Co. v. Cochran, 71 Ark. 55, 70 S. W. 606; Arkadelphia Lumber Co. v. Henderson, 84 Ark. 382, 105 S. W. 882; Arks. Central Railroad Co. v. Workman, 87 Ark. 471, 112 S. W. 1082. The servant does not assume the risks of the employment if by reason of his inexperience he is not acquainted with the dangers that are incident thereto, or by reason of his known physical infirmity he is not able to observe such dangers. What might be obvious and patent to a man whose vision is unimpaired is not necessarily so to a man whose eyesight is very defective. What, therefore, would be an act of contributory negligence on the part of the one might not, under the circumstances of the case, be such negligence on the part of the other, if on account of the known physical infirmity the danger was not obvious and patent to him. And, therefore, if the master under such circumstances employs such a servant, and fails to instruct and warn him, the master is guilty of negligence. Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232, 19 S. W. 600; St. L., I. M. & S. Ry. Co. v. Tonthey, 67 Ark. 209, 54 S. W. 577, 77 Am. St. Rep. 109; Southern Oil Co. v. Spotts, 77 Ark. 458, 92 S. W. 249; Western Coal & Mining Co. v. Burns, 84 Ark. 74, 104 S. W. 535; 1 Labatt on Master & Servant, §§ 240, 252; 26 Cyc. 1177.
In this case there was evidence tending to prove that the defendant knew of the inexperience of the plaintiff to do the work required of him in this employment, and also knew that by reason of his defective eyesight the plaintiff would incur greater perils in the performance of this service at the saw; and with this knowledge the defendant failed to instruct the plaintiff or warn him of the dangers of the service. On the contrary, there is evidence tending to prove that defendant's foreman assured the plaintiff that he could safely perform the service with...
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