Wisconsin & Arkansas Lumber Co. v. Price

• Decision Date: 23 October 1916
• Docket Number: 209
• Citation: 188 S.W. 1171,125 Ark. 480
• Parties: WISCONSIN & ARKANSAS LUMBER CO. v. PRICE
• Court: Arkansas Supreme Court

188 S.W. 1171

125 Ark. 480

WISCONSIN & ARKANSAS LUMBER CO. v. PRICE

No. 209

Supreme Court of Arkansas

October 23, 1916

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; reversed and dismissed.

STATEMENT BY THE COURT.

The appellee, a young man twenty-two years of age, was in the employ of appellant. His usual work was taking down what was called "strip stock" and loading same on a lumber truck, which he designated "the buggy." On the morning of the 18th of May, 1914, the foreman of appellee ordered him to leave his usual work and go down and pull lumber off of the chains. The duty of taking the lumber from the chains required that appellee stand at a certain point with the transfer chains at his right and the truck or buggy on which he loaded the lumber at his left. The transfer chains ran along the length of a table at an elevation of about three or four feet. The width of the table on which these chains were operated was something like six feet. The boards of lumber were placed one after another in succession on the transfer chains and were by this means transported to certain points along the chains where employees were situated to unload them as they passed. The machinery was so arranged that it carried by the place where appellee was situated either lumber from the cars or from the rip stock, or from both, just as the foreman should direct.

The foreman told appellee on this occasion, "Now, I want you to get them," meaning that appellee was to catch the boards of lumber as they came by on the transfer chains and load the same on the buggy or truck. When lumber was coming only from the cars one man could handle it, and one man could handle it when it was coming from the rip stock department only, but when it was coming from the cars and also the rip stock department it required the services of two men to handle it.

Appellee on the occasion mentioned, had to catch both the lumber from the car and also from what they called the rip stock. He was directed by his foreman to do this work, which usually required the services of two men. Appellee was put in the position three or four minutes before 7 o'clock in the morning and worked until about 11 o'clock. He had not worked in this position before. Appellee, while doing this work, had the middle finger of his left hand injured. He testified as to the manner of his injury as follows "The way I came to get hurt, I had taken hold of a plank and had hold of it back this way (demonstrating) and went to put it on the buggy and bumped my hand against the plank on the buggy and busted my finger. The way my hand came to get caught there, was by overrush of work. I couldn't catch them. I was watching what was coming and what I was putting on the buggy. I was working so fast I didn't have a chance to catch them. I was doing the work as carefully as I could. I was doing all I could to obey the orders of my foreman to get all these slabs that came by. This stock and stuff was coming over the chains sometimes three and four deep, and I had to take all of it, not let any of it get by and load it. I had to obey what the foreman told me and I was trying to do it. The pieces were coming one right after another and sometimes piled upon top of each other. I had hold of it with my left hand. I caught hold of it some distance on the plank with my right hand and shoved the plank back against the lumber on the buggy and mashed my finger. If I had had time to have noticed what I was doing I might have taken hold of the side of it, but I didn't have time; it was coming so fast I was overrushed. I don't expect I would have been hurt if I had taken hold of the side of the plank with both hands. If my hand had not been on the end of the board it would not have been hurt. Some of the boards passed me that morning without me taking them off; I could not catch them. When they passed me I don't know whether the next man could get them or not. We were all grading and every man had to catch his own grade. If I didn't catch my grade it went down to the end of the chain and fell off. I was ordered by my foreman to get the planks that came by me and not let them go by. That's what I was trying to do and in order to do that, I had to keep my eye both on the car the best I could and the planks to keep them from going by."

Appellee instituted this suit against the appellant for damages, alleging that the appellant was negligent in requiring appellee to do the work of two men in handling the large volume of lumber; that thereby appellant rendered unsafe and dangerous the work which plaintiff was required to do, and that by reason of such negligence appellee received his injuries.

The appellant denied the allegations of negligence, and set up the defenses of contributory negligence and assumed risk on the part of the appellee.

The above are substantially the facts, stated in the most favorable light for appellee, upon which the verdict and judgment were based.

Judgment reversed, and cause dismissed.

T. D. Wynne, for appellant.

The negligence complained of was not the proximate cause of the injury, but the injury resulted from appellee's own careless and inattentive conduct.

The proximate cause, to render the defendant liable, must be the wrongful act of the defendant or its employees, otherwise no cause of action for the injury can be maintained. 1 White Personal Injuries, par. 39; 24 S.E. 278; 36 N.Y.S. 926; 102 Mich. 72; 60 N.W. 286; 44 N.E. 273; 72 N.Y.S. 501; 58 S.W. 151.

J. C. Ross, for appellee.

The proof is positive both that it had been the custom to put two men to do this work, and that it required two men to do it. It was therefore clear negligence for the foreman to direct and require appellee alone to do the work. As to the duty of a master to furnish adequate help, see 4 Thompson on Negligence, §§ 3807, 4175, 4768, 4829, 4865, 4868; White's Supp., § 3807; 3 Labatt, Master and Servant, §§ 1107, 1108. The negligence of the foreman in requiring appellee to do this work alone was the proximate cause of the injury. The agency which resulted in the injury complained of was the negligence of the foreman in not providing the usual and necessary number of men. 97 Ark. 576; 104 Ark. 59; 1 Thompson, Neg., § 49; Id., §§ 52, 64; 77 Ark. 377; 191 Ill. 439; 116 Ky. 318; 90 Minn. 343; 215 Mo. 567; 114 S.W. 1013; 181 S.W. 278; 3 Labatt, Master and Servant, §§ 1256, 1273, 1274; 33 Ia. 52, 59; 51 Ore. 21; 11 Ind.App. 118, 129; 99 Ark. 254, 257; 53 Ark. 466.

OPINION

WOOD, J. (after stating the facts.)

The appellant contends that the undisputed evidence shows that it is not liable. This is the only ground urged for a reversal of the judgment.

It appears that appellee received his injury by taking hold of the plank with his left hand gripped to the end of it and shoving the end so gripped against the plank on the lumber buggy. If he had caught hold of the board on the side with both hands, and had not had his left hand on the end when he shoved it against the plank on the lumber buggy, he would not have been hurt. He had loaded possibly three or four buggies that morning before he received his injury and had worked about four hours at that place before he was injured.

There was testimony to warrant the jury in finding that the appellant was negligent in directing appellee to do the work that required the services of two men to perform. But there is no testimony to warrant the conclusion that such negligence caused or contributed to the injury of the appellee.

Appellee's testimony shows that notwithstanding the rush order of the appellant, he had been able to obey the order and do the work which he was directed to do for at least four hours without injury, and...