Yellow Rose Mining Co. v. Strait

• Decision Date: 01 April 1918
• Docket Number: 265
• Citation: 202 S.W. 691,133 Ark. 206
• Parties: YELLOW ROSE MINING COMPANY v. STRAIT
• Court: Arkansas Supreme Court

202 S.W. 691

133 Ark. 206

YELLOW ROSE MINING COMPANY v. STRAIT

No. 265

Supreme Court of Arkansas

April 1, 1918

Appeal from Marion Circuit Court; John I. Worthington, Judge affirmed.

Judgment affirmed.

J. C Floyd and Blanton & Andrews, for appellant.

1. The defenses interposed were (1) The injury was an accident unmixed with negligence; (2) defendant contributed to his injury and (3), plaintiff assumed the risk. The 1st instruction ignores the questions of contributory negligence and assumed risk. Standing alone it is clearly erroneous and is not cured by any other. 43 S.W. 715; 20 Id. 293; 41 N.E. 600; 35 P. 39; 64 Ark. 605; 74 Id. 437. No 2 is open to the same objection.

2. The doctrine of master and servant requiring the master to exercise reasonable diligence to furnish the servant a safe place to work has no place here and an instruction submitting a proposition not raised by the evidence is misleading error. 22 Ark. 477; 159 U.S. 3; 33 Ark. 350.

3. The vice of No. 10 is patent. It is based upon the fact that it was necessary that the master give notice of approaching danger and that it was necessary to give such notice at the time of unloading as well as after unloading. Further it requires the jury in considering the question of assumption of risk, to base their verdict wholly upon the evidence of defendant. It was misleading. Authorities supra.

4. Defendants No. 3 clearly submits the question of assumed risk and it was error to refuse it.

5. Instruction No. 10 given goes only part of the way on the issues raised. It limits the assumption of risk to the ordinary risk incident to the employment. One who knows the risk and danger, undertakes to perform the work and dispenses with the obligation of the master to furnish him a safe place to work.

6. It was not the duty of the master to warn where master and servant are possessed of equal knowledge of the danger. The servant assumes the risk. Defendants request No. 4 should have been given. 134 S.W. 636.

7. No. 9 refused should have been given. 135 S.W. 455, etc.

8. The verdict is not sustained by the evidence. No negligence was proven; contributory negligence was and plaintiff clearly assumed the risk. The burden was on plaintiff. 182 S.W. 525; 19 S.W. 601; 134 Id. 636; 145 Id. 218.

Willams & Seawel, for appellee.

1. The testimony shows that the injury was caused by the negligence of defendants servant and the doctrine of res ipsa loquitur applies. 29 Cyc. 591; 86 Ark. 76, 81; 75 Id. 479, 491; 77 Id. 1; 57 Id. 429; Id. 429; 54 Id. 209.

2. Under the facts there could be no assumption of risk. 199 S.W. 535; 126 Ark. 449; 93 Id. 88.

3. Contributory negligence is no longer a perfect defense, and there is no evidence here to support such a plea. A prima facie case of negligence was made. 60 Ark. 409; 38 Id. 357, 366. The issues were fairly submitted to a jury under proper instructions. 77 Ark. 458; 86 Ark. 76, 82; 88 Id. 189.

4. Instruction 1 is not erroneous. Acts 1913, p. 734; 89 Ark. 522; 92 Id. 502. Appellee did not assume any risk of the negligence of appellant's servant. His right to recover for negligence of his employer is plain. 116 Ark. 461; 126 Id. 225; Ib. 449, 452. No specific request was made for further instruction, nor was it properly objected to. 90 Ark. 108; Ib. 211; 88 Id. 181, 204; 93 Id. 589; 101 Id. 95.

5. Appellant asked and the court gave No. 7 and any objection to No. 1 given. 88 Ark. 172; 81 Id. 579; 69 Id. 140; 67 Id. 532; 59 Id. 317. Appellant asked and the court gave No. 2 on the question of accident and No. 9 and 10 of appellee and 13 and 14 of appellant on contributory negligence. No specific objections for any omission was made. 93 Ark. 589; 93 Id. 564; 83 Id. 61; 119 Id. 530.

6. Objections were waived to Nos. 2 and 8. There was no error in the modification to No. 8. 87 Ark. 101; 65 Id. 371; 88 Id. 204; 105 Id. 334. The objection was abandoned, 101 Ark. 398; 103 Id. 260. The modification was properly refused. 97 Id. 362; 77 Id. 367. See also, 103 Ark. 61; 104 Id. 506; 71 Id. 55; 53 Id. 117, etc.

7. The objection to No. 10 was general. 98 Ark. 264; 81 Id. 187; 79 Id. 378; 78 Id. 100.

8. The objections to 8, 11 and 12 were en masse. 76 Ark. 482; 75 Id. 182; 58 N.E. 747. The true rule was covered by instruction No. 10 given. 77 Ark. 367; 97 Id. 358; 77 Id. 458.

9. No. 4 was wholly inapplicable. 97 Ark. 486. No. 9 was properly refused. There was ample testimony to submit the issue of negligence to a jury. The whole case was fairly submitted to the jury.

OPINION

SMITH, J.

Appellee was the plaintiff below and recovered judgment to compensate an injury sustained by him while employed by the appellant zinc mining company. He had been engaged in removing certain timbers underneath a tramway, over which cars of ore were being pushed and propelled, but on the morning of his injury he was directed to build a tipple at the end of a certain tramway which was not then in use. He failed to find the necessary material to build the tipple and he reported that fact to his foreman, who directed him to tear up a discarded tipple which was lying near the tramway then in use, and use the material thus secured in building the tipple. The place in which he was working was about eight or ten feet south of the boulder room into which the material from the mine was dumped, and about six feet east of the tramway. This tramway ran north and south and connected the tunnel in which the mining was being done at the south terminus with the tipple over the boulder room at the north terminus. The tipple was a pen-shaped structure built of heavy, two by four timbers, spiked together to such a height that the top of the end next to the tramway was on the level with the top of the cars and formed a bumper for the cars to strike against in the process of dumping. The ore was carried on the cars in a large two hundred pound metal can, and iron bars were placed in the pen in such position as to keep the can from falling through when dumped into it from the cars. The track to the tipple was so laid that the loaded cars ran to it by gravity, but upon returning to the mine, the car upon which the can sat was pushed by an employee. Cleats were nailed to the car in such a way as to hold the can at an angle which caused it to dump properly. The top of the car was flat and the can was about thirty-two inches in diameter and thirty-six inches high. The loaded car propelled by gravity would strike the bumper at the tipple with sufficient force to throw the can forward off the car into the pen where its contents were emptied and this operation made it dangerous for one to remain in close proximity to this room while the ore was falling from the can. Accordingly, when a car was released at the south end of the trestle the person releasing the car would cry out a warning, whereupon persons near the boulder room would retire some distance therefrom. As soon as the can had dumped, the employee in charge thereof would follow down to the tipple and those near the boulder room would return to their work. If any material remained in the can or any other danger arose therefrom, the employee in charge thereof, knowing that it was customary, for those beneath to return to work, would cry out a warning to those persons to return to a place of safety and would beat upon the can to dislodge its contents and would then seize the can by the top and pull it up and back from the top of the car and it would fall into its place thereon.

A can had just been dumped in this manner when appellee and others returned to the place of their employment and resumed their labors, when Vickers, an employee of the appellant company, who was operating one of these cars, in his effort to load one of the cans out of the tipple on the car, lost control of the can and it was hurled down off of the trestle upon appellee and injured him severely.

As a basis of the right of recovery, it is insisted that while appellee was performing the duties of his employment, with due care on his own part, he sustained an injury which did not result from any danger incident to the employment, but one which arose from the negligence of an employee in failing to properly operate the car or to give the customary warning which would have enabled appellee to retire to a place of safety. The appellant company denied liability and plead as a defense, assumption of risk and contributory negligence. These were the controlling issues in the case, although the instructions given at the request of both parties covered a wider range. The jury returned a verdict for a substantial sum and this appeal has been prosecuted to reverse the judgment pronounced thereon.

Appellant says that there are only two possible theories under which the judgment can be sustained. One was its failure to exercise reasonable care to furnish a safe place for appellee to work. The other is that the injury resulted from the negligence of a fellow servant. Instructions were given on both these questions, yet, under the facts of this case, these questions become the same, and, as appellant says in its brief, the question of furnishing a safe place in which to work is not really one of the issues in the case, for if the testimony supports the verdict at all, it is because the plaintiff's injury resulted from the negligence of Vickers in carelessly handling the can.

Counsel for the respective parties argue the applicability of the doctrine of res ipsa loquitur. But we need not now determine whether it applies under the testimony in this case, because the instructions given made no application of that doctrine. Counsel for appellant say, however, that unless the doctrine does apply, and is applied to the facts of this case, that the evidence does not...