Wortz v. Fort Smith Biscuit Co.

• Decision Date: 21 October 1912
• Citation: 151 S.W. 691,105 Ark. 526
• Parties: WORTZ v. FORT SMITH BISCUIT COMPANY
• Court: Arkansas Supreme Court

151 S.W. 691

105 Ark. 526

WORTZ v. FORT SMITH BISCUIT COMPANY

Supreme Court of Arkansas

October 21, 1912

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; affirmed.

Judgment affirmed.

Read & McDonough, for appellant.

A master owes the same duty to a foreman to provide safe machinery and instrumentalities with which to work that it owes to other employees. 98 Ark. 34. The risks and hazards incident to the set-screws and pulleys were not open and obvious, and were not risks that were known to the plaintiff. 27 Ark. 347. Where, as in this case, the plaintiff was acting under the direct commands of the master and was performing work, as the undisputed evidence shows, which was not in the line of his duty, it would be error to instruct the jury that he assumed all risks of which he knew or could have known by the exercise of ordinary care. Such being the case, it was patent error to instruct a verdict in favor of the defendant. 97 Ark. 358. A servant assumes only ordinary risks. 97 Ark 358; Id. 486. Under the circumstances shown in evidence, it is always a question of fact for the jury to determine whether or not the complainant assumed the risk, or was guilty of contributory negligence. 97 Ark. 553; 98 Ark 34; 89 Ark. 522; 95 Ark. 291; 93 Ark. 564; 92 Ark. 102; 92 Ark. 502; Id. 554; 91 Ark. 86; Id. 102; Id. 388; 90 Ark. 145; Id. 223; Id 543; Id. 555; 88 Ark. 20; Id. 28; 77 Ark. 367; 78 Ark. 38; 82 Ark. 534. A servant acting under orders does not assume the risk. 67 Ark. 377; 77 Ark. 556; 71 Ark. 55. An order from the master relieves from the doctrine of assumed risk, unless it is shown that the danger is so patent that no person of ordinary prudence would have obeyed. 77 Ark. 458; 65 Ark. 138; 76 Ark. 184.

Ben Cravens, John H. Vaughan, C. B. Fisher and A. L. Berger, for appellee.

1. The evidence does not tend to prove negligence on the part of defendant, nor that the proximate cause of the injury was any of the acts or omissions alleged as negligence in the petition. The injury itself is not evidence of negligence, and it will not be presumed.

2. If there are any facts disclosed by the evidence which tend to prove that appellee was in any respect guilty of negligence towards appellant, it is clear that there was concurring negligence on the part of appellant which contributed to the injury. Appellant's own testimony shows that he had been warned and knew of the danger of attempting to put on the belts without stopping the machinery, and knew of the order not to put on the belt while the machinery was in motion. 142 S.W. 153, 154; 141 S.W. 1176, 1179; 61 N.E. 262; 32 So. 232; 90 Ark. 223, 119 S.W. 73; 90 Ark. 555; 120 S.W. 146; 130 N.W. 630; 96 Ark. 466; 132 S.W. 212; 84 Ark. 337; 105 S.W. 878; 120 Am. St. Rep. 74; 140 S.W. 584; 79 Ark. 437, 96 S.W. 183.

3. Appellant assumed the risk and can not recover. He knew and appreciated the dangers incident to the work in which he was engaged. He was not relying upon a promise to repair. The dangers were open and obvious, within the knowledge not only of the master but also of appellant through the caution given him by the manager, the order forbidding that method of doing the work, and through his own observation. A safe way existed which he had been directed to use, yet he chose the dangerous way. 142 S.W. 1131, 1132; 73 N.W. 992, 993; 141 S.W. 1176, 1178; 77 Ark. 367, 92 S.W. 244; 92 Ark. 102, 122 S.W. 116; 90 Ark. 387, 199 S.W. 277; 96 F. 298, 37 C. C. A. 499, 48 L. R. A. 68; 97 F. 423, 38 C. C. A. 239; 82 Ark. 534, 103 S.W. 158, 11 L. R. A. (N. S.) 720; 95 Ark. 136; Id. 291; Id. 560; 96 Ark. 387; Id. 206; 97 Ark. 486; 135 S.W. 892; 140 S.W. 14, 21; 140 S.W. 587; 138 S.W. 469; 145 S.W. 562, 563; Id. (Ark.) 564, 566.

OPINION

FRAUENTHAL, J.

This is an action instituted by Walter W. Wortz, the plaintiff below, to recover damages for an injury which he received while in defendant's employ, and which he alleged was due to its negligence. The defendant denied that the injury was due to any negligence upon its part, and pleaded as a bar to any recovery the plaintiff's assumption of the risk and his own negligence contributing to its cause. After the plaintiff had introduced his evidence and rested his case, the court directed the jury to return a verdict in favor of defendant, which was done. From this action of the court the plaintiff has prosecuted this appeal.

In reviewing this ruling of the court directing a verdict, the evidence adduced upon the part of the plaintiff must be considered in the light most favorable to his cause of action. If under that evidence, however, with every reasonable inference of fact that is deducible therefrom, the plaintiff is not under the law entitled to a recovery, then the ruling made by the court is correct.

The evidence adduced upon the part of the plaintiff consisted of the testimony of two witnesses, the plaintiff himself and a witness who was not present when the injury was received, but who had special knowledge as to the character of the machinery at which plaintiff was injured, and as to whether it was in a reasonably safe condition. The case thus made by this testimony is this:

The defendant is a corporation located at Fort Smith, and is engaged in the manufacture of crackers, fancy cakes, cracker meal and other products of like character. In this factory the defendant has a number of machines, amongst which is one known as a cracker mill, which is used for the purpose of grinding crackers into meal. This machine was located on the lower floor of the building, and consisted of a hopper, burr and discs, in which the crackers were crushed. It was situated upon a platform about eight inches from the floor, and was driven by a belt four inches in width, attached to a pulley on said machine, and to a larger pulley on an overhead shaft, about eight feet above the machine. On the occasion of the injury, the plaintiff was directed by defendant's manager to grind some cracker meal, and he proceeded to this machine to perform that duty. He found that the belt was off, and it became necessary, in order to start the machine, to put the belt upon said pulleys. To do this, the plaintiff called to his assistance a girl employed at the factory, who held the belt upon the lower pulley while he climbed upon a step ladder to put the belt on the top pulley while the same was in motion. The plaintiff climbed up the ladder, and put the belt over the top pulley while in motion, and then proceeded down the ladder while the belt and machinery were in motion. In making the revolutions, the belt jumped off the pulleys, and the lower end was thereby whirled about. As plaintiff was in the act of stepping from the ladder to the floor, this end of the belt caught him around the arm and whirled him around the shaft, breaking his right arm so as to necessitate its amputation, and injuring him on other parts of his body.

It appears that the burr or discs had become broken, probably a year or more before the accident, and in order to grind the crackers it was necessary to tighten them up to an extent which would somewhat choke the machine while running, and thus tend to throw the belt from the pulleys; that the platform upon which the machine stood had become somewhat shaky, and, as plaintiff described it, "wobbly" to some extent, and thereby also tended to throw the belt off the pulleys. It also appears that upon the line shaft to which the top pulley was attached there was also attached a smaller pulley, about two or three inches from the larger pulley, and that from the journal of the larger pulley there extended some set-screws for a distance of an inch or more.

The plaintiff was twenty-seven years old, and had been engaged for a number of years in working with machinery similar to that used in defendant's factory. His father was president and manager of defendant's company, and plaintiff had been working at its factory for about four years prior to the injury. He began as an ordinary employee, and had been advanced until he was made foreman, about a year and a half before the injury, and continued in that position up to the time of the injury. He was not a machinist, but it was his duty as foreman to look after the machinery in a general way, repairing the smaller defects in it himself and reporting to the manager larger defects which he could not fix. He had authority to employ and discharge servants engaged at the factory, but was himself subject to the orders of the manager of the company. He testified that he had noticed for some time prior to the injury the broken condition of the burr, and called the manager's attention to it, who had promised to repair it; but he continued to work at the machine for a long time after that without complaint and, as we think, without any reliance upon any promise to repair. It also appears that he was well acquainted with the fact that the stand upon which the machine was placed was somewhat shaky long prior to the accident. In placing the belt upon the top pulley, the plaintiff was a foot or so from it, and reached his arm over the smaller pulley upon the shaft, located two or three inches from it, and this and the obtruding set-screws were directly in front of him as he faced them.

The expert witness...