Warren Vehicle Stock Company v. Siggs

• Court: Supreme Court of Arkansas
• Writing for the Court: FRAUENTHAL, J.
• Citation: 120 S.W. 412,91 Ark. 102
• Parties: WARREN VEHICLE STOCK COMPANY v. SIGGS
• Decision Date: 14 June 1909

120 S.W. 412

91 Ark. 102

WARREN VEHICLE STOCK COMPANY
v.
SIGGS

Supreme Court of Arkansas

June 14, 1909

Appeal from Bradley Circuit Court; Henry W. Wells, Judge; reversed.

Judgment reversed and cause remanded.

Purcell & Bradham and Murphy, Coleman & Lewis, for appellant.

Before an employee is exempted from the risk incident to a dangerous work on the ground that it was undertaken under the immediate command of his superior, or from contributory negligence under the circumstances in attempting such work, it is necessary (1) that the danger be latent, or exist in consequence of some altered condition of the service caused by the negligence of the master; and (2) the circumstances must be such that the command may be regarded as carrying an implied assurance that it is safe for the employee to obey it. 81 Ark. 343; 77 Ark. 367.

Herring & Williams, for appellee.

It is the duty of the master to warn and instruct his servant as to dangers of which he knew, or ought, in the exercise of reasonable care and diligence, to know, and of which the servant has no knowledge, actual or constructive. 26 Cyc. 1165, div. "D;" 39 Ark. 37; 58 Ark. 177; 79 Ark. 23. Appellee's protest against doing the work because it was "dangerous work" was a general statement, which implied no knowledge of the specific dangers involved. Moreover, his positive testimony was that he was inexperienced, and did not know the dangers involved. Other testimony shows that he was awkward from the first, and did not seem to know much about it. 53 Ark. 117. Under the facts in proof it was a question for the jury to say whether he assumed the risk. 115 S.W. 175; 79 Ark. 57.

OPINION [120 S.W. 413]

[91 Ark. 103] FRAUENTHAL, J.

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 [91 Ark. 104] 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 eighteen inches of the saw and should not take hold with his hands of slabs that were as short as six 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 six-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 of its agents having authority to employ laborers, and that he was assigned to perform the services of 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

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