| Ark. | Jan 18, 1909
Appellee Carr sues appellant to recover compensation for physical injuries which he received while at work in appellant’s mill moving sacks of cotton-seed meal. He alleges in his complaint that-the pile of sacks of meal, which- he was then engaged in moving for the purpose of loading them on railroad cars, fell upon him and broke his leg, and that the injury occurred by reason of negligence of appellant in causing the sacks of meal to be insecurely piled.
Allegations of negligence in other respects are contained in the complaint; but, as the case was submitted to the jury solely on the allegation of negligence set forth above, we need not mention any others.
The facts of the case developed at’the trial were, in substance, as follows: Appellant was at the time of the injury to appellee, and had been for many years, operating a cotton-seed oil mill near the city of Little Rock. The meal, after the oil is pressed out, is placed in sacks, and the sacks are piled unt;l ready to be loaded in cars for shipment. The customary method in vogue of piling the meal was to build up first at the beginning of a pile what the witnesses call a “bulkhead,” by laying down two rows of sacks about four sacks long and then crossing them with others, thus “tying” the sacks together, so that they would not topple over readily. The bulkhead was built up to the height which was desired for the pile, and then the sacks were piled in rows against it without tying them, however, as in building the bulkhead, because that would make the pile too troublesome to take down when it is to be moved. This is the method of piling the meal which has been invariably practiced at this mill for the past thirty-three years, and all the witnesses who testified on the subject say that it is the best practicable method of piling it. No witness testifies that i't should have been piled in any other way. One stated that the pile fell because it was “not piled exactly right,” but this statement was excluded by the court because it was merely expression of an opinion without peculiar knowledge of the subject to base it on, and the witness proceeded to describe ■ how this particular pile was erected, and described it as having been done in the precise manner that it had always been piled.
Where, then, was there any negligence on the part of appellant? We fail to discover from the evidence any act of negligence on the part of appellant in piling the meal. Therefore appellee has made out no case for recovery of damages. The fact that fhe pile of meal fell down raises no presumption of negligence in stacking it. The evidence shows definitely how it was piled, and that it was piled in the customary manner. Therefore there is no room for presumptions to be indulged in the case.
We are also of the opinion that appellee assumed the risk of this danger. He was engaged in the work of taking down the pile and moving it. He had been engaged in this work for some time; the manner in which the meal was piled and whatever danger there was of its falling down was obvious to any one who looked at it; the meal was piled in the customary way; and the danger was one of the ordinary incidents to the work which he assumed when he took service. Choctaw, O. & G. Rd. Co. v. Thompson, 82 Ark. 11; Rooney v. Sewall & Day Cordage Co., 161 Mass. 153" date_filed="1894-03-28" court="Mass." case_name="Rooney v. Sewall & Day Cordage Co.">161 Mass. 153.
Other questions are raised, but as this is decisive of the case we need not discuss them.
It follows that the court should have given a peremptory instruction in favor of appellant. As the case is fully developed, and it does not appear that the evidence could be different on another trial, it is useless to send it back for a new trial.
Reversed and dismissed.