133 Ark. 336 | Ark. | 1918
On the 4th day of April, 1917, appellee brought suit against appellant in the Searcy circuit court to recover damages for an injury received while gumming a mill saw with an emery wheel revolving rapidly by steam power. The complaint contained the following allegations of negligence:
■ “First, in requiring him (appellee) to gum and file said saws with defective machinery, and apparatuses, same being insufficient.
“Second, in negligently and carelessly failing to have a hood or shield in said machinery for protection while he was performing his duty.
“Third, in carelessly and negligently having plaintiff (appellee) to work in á situation and place that was known to defendants (appellants) to be dangerous and hazardous and not known by plaintiff (appellee) to be so.
“Fourth, in not providing a reasonably safe place, for plaintiff to work, and in failing to, use proper care to have a shield or protector for said machinery while plaintiff was obeying the orders of his principal in gumming and filing said saws. ”,
Appellant answered, denying all the material allegations of the complaint, and, by way of further defense, pleaded contributory negligence on the part of, and assumed risk by appellee.
The cause was submitted to a jury upon the evidence and instructions of the court, and a verdict was returned in favor of appellee for $2,500. Judgment was entered in accordance with the verdict, from which an appeal has been prosecuted to this court.
The facts are substantially as follows: In October, 1916, appellant employed appellee to look after a stave mill and gum and sharpen saws. Mr. Eglin was superintendent of the production of the mill and employed appellee. The mill was shut down for repairs when appellee was employed, and Eglin informed him that all the machinery, including the emery wheel, was in good shape. The saw teeth were gummed, which means they were deepened and lengthened, by the use of an emery wheel attached to a rod and suspended from above. The emery wheel was revolved rapidly by power and the saw was moved along so as to bring each tooth in contact with the emery wheel for the purpose of gumming it. While appellee was engaged in this work at the noon hour, the customary time to do the work, the emery wheel broke and injured appellee. The emery wheel was turning at the rate of about 1,500 or 2,000 revolutions per minute. It was of Detroit make and was purchased from Hadley Buck of St. Louis. The Detroit wheel bore the reputation of being a good make of wheel. This wheel was operated without a hood. The wheel could have been operated with a hood. It was unsafe to operate the wheel without a hood, because emery wheels occasionally bursted when in operation. Appellee knew that this wheel had no hood; that it was safer to operate them with hoods; and that it was dangerous to operate them without hoods. Appellee had used this particular wheel three or four times before he was injured. He was an experienced gummer, having been engaged in that particular business for ten or twelve years for a number of stave mill concerns. No inspection of the wheel had been made since its installation by appellant. There was no evidence tending to show a defect in the wheel except the statement of appellee and J. N. Moore to the effect that the wheel would not have.broken at the rate of speed it was running unless it had contained a defect. There was no evidence tending to show that if a defect did exist it could have been discovered by a careful inspection of the wheel.
In the case of St. Louis, Iron Mountain & Sou. Ry. Co. v. Wells, supra, no defect in the glass feed was claimed. In the instant case, a defect was claimed in the emery wheel but no defect was proved; nor was it proved that by a careful inspection a defect could have been discovered in the wheel. The only evidence tending to show that a defect existed in the emery wheel was the conclusion of appellee and Moore that the wheel would not have broken at the speed it was driven unless it contained a defect. This character of proof is not sufficient to establish the defect. It was said by this court in the cáse of St. L. & S. F. Rd. Co. v. Wells, 82 Ark. 372, that, “negligence of the company can not be inferred merely from the occurrence of the accident. That must be proved, and the burden of establishing it is on the party who alleges it. ’ ’
On account of the lack of substantial evidence in the record to sustain the verdict, the judgment must he reversed and the cause remanded to the circuit court of Searcy County for a new trial.