Wisconsin & Arkansas Lumber Company v. Garrett

• Decision Date: 17 January 1921
• Docket Number: 105
• Citation: 226 S.W. 1051,147 Ark. 75
• Parties: WISCONSIN & ARKANSAS LUMBER COMPANY v. GARRETT
• Court: Arkansas Supreme Court

226 S.W. 1051

147 Ark. 75

WISCONSIN & ARKANSAS LUMBER COMPANY v. GARRETT

No. 105

Supreme Court of Arkansas

January 17, 1921

Appeal from Hempstead Circuit Court; George R. Haynie, Judge affirmed.

Judgment affirmed.

T. D Wynne, for appellant.

1. It was error to refuse to direct a verdict for defendant as requested. There was a total failure of evidence to show that the jack with which plaintiff was injured was defective or that defendant knew of the defect. The verdict is based upon speculation, inference and surmise and can not be sustained. 26 So. Rep. 86; 51 La.Ann. 1247; 88 F. 462. See, also, 59 Ark. 106; 58 Id. 454; 106 S.W. 817; 212 Id 463.

2. Plaintiff assumed the risk. 57 Ark. 160; 54 Id. 389; 56 Id. 232; 43 Id. 333; 88 Id. 548; 96 Id. 387.

3. It was error to give plaintiff's instruction No. 5. It is abstract. 88 Ark. 548, 243; 101 Id. 197; 104 Id. 489; 98 Id. 202; Labatt on M. & S. (2 ed.), vol. 3, par. 1174, 1179, 1183.

4. The verdict is excessive and at least a remittitur should be entered.

D. D. Glover and Luke Monroe, for appellee.

1. The verdict is sustained by the evidence. The evidence does show that the jack was defective and that defendant knew it or might have known it if due care had been used. 4 Labatt on M. & S., pp. 4185, 4819. The cases cited by appellant, 26 So. 86, and 212 S.W. 463, are not in point.

2. The risk was not assumed. 92 Ark. 355; 4 Thompson on Neg., § 3803; 1 Labatt on M. & S., §§ 155-7; 101 Ark. 201; 123 Id. 119; 107 Id. 512; 122 Id. 227.

3. The verdict is not excessive. Plaintiff was a young man with an expectancy of thirty-six years of life. The questions of fact were submitted to a jury, and there were no errors of law, and under the law and evidence the verdict is conclusive.

OPINION

SMITH, J.

Appellee, who was the plaintiff below, recovered judgment for $ 6,000, to compensate an injury which, according to his testimony, was sustained in the following manner. He was injured on November 10, 1919, while working in appellant's car repair shop, where he had worked only five days before his injury. A car, weighing about eight or nine thousand pounds, was jacked up with jacks--two on each side. Plaintiff did not assist in jacking the car up, but was directed by his foreman to let the jack down. The jack was hard to start, but plaintiff was assured that there was nothing wrong with the jack, that it just needed working, and for him to go ahead and let it down. In lowering the jack he used a canthook handle as a lever, which was about five or six feet long. He had lowered the jack a notch or two in the usual and ordinary way, when the handle flew up unexpectedly and struck him on the jaw, knocking him down and rendering him unconscious for a few moments. After regaining consciousness he looked at the jack closely and saw that it was in a defective condition. His jaw was broken, and pus formed in it, which ran for about three months, during which time pieces of bone sloughed off, and his jaw was kept bandaged, and he saw a doctor nearly every day. His jaw became ankylosed, and an operation was performed which left a hole in his jaw, since which time he has been unable to chew his food, and has been unable to talk except through his teeth, and his jaw feels dead and stiff and pains him at times, so that he can not take bites of food as an ordinary man does, and he sustained a loss of twenty pounds in weight. There were four jacks in the shop, all of the same size and make, and one could not be told from another by casual observation.

John Bailey, who had been foreman in the repair shops until about two months before plaintiff's injury, testified that an engine fell on one of the jacks and bent the step or stempiece which comes up out of the jack, which is housed in and which has notches on it, and this occurrence tore the step loose and damaged the screw so that it would not hold after that. Witness regarded the jack as unfit for use, put it in the scrap heap, and asked for a new one in its stead. The master mechanic took the jack to the shop and attempted to repair it, and put it back in use. The jack was repaired more than once, but on account of the stem being bent the dog, which catches in the notches, worked to the side, instead of the center of the stem, and would cause it to slip out of the notches and fall.

There was testimony that the jack fell once while the general foreman was present, the lever going near his head, and that the master mechanic, whose duty it was to keep the tools safe, knew of its defects, and put it back into use over the foreman's objection.

The witness, Bailey, who testified about the defective condition of the jack, did not know that plaintiff was injured while employed with that jack or that the jack was in use when plaintiff was injured, and objections were made to the admission of the testimony on that account. But there were only four jacks in use, and the testimony was to the effect that only one of them was defective, and plaintiff testified that he observed some of the defects in the jack with which he was at work which the witness Bailey described. The testimony of Bailey was competent, as it, taken in connection with that of plaintiff, warranted...