129 Ark. 95 | Ark. | 1917
The Greenville Stone & Gravel Company prosecutes this appeal to reverse a judgment against it for damages in favor of C. Chaney, who was injured while working for said company. The material facts are as follows:
The Greenville Stone & Gravel Company is a corporation engaged in the business of crushing stone at its plant at Williford in Sharp County, Arkansas. C. Chaney was injured while 'working for it on the 8th day of July, 3914, by a part of the stone crushing machinery falling on Ms foot. The rock screen at which Chaney was at work when hurt, is thirty feet long, five feet in diameter and is divided into six sections. The upper end is twenty inches higher than the lower end in order that the crushed stone may run down as the screen rolls over, and fall' into the bin below. The screens have holes in them to let the rock through and they are changed according to the size of the stone wanted. The screens were being changed at the time Chaney was hurt. The foreman had directed Chaney and another servant to go on the inside of the screen to catch the bolts when the taps were taken off from the outside. When the loose bolts were taken out, the servants on the inside of the screen always stepped back in the clear. On the occasion in question, Chaney was at work in the south end. When the loose bolts were taken out, one of the laborers said, “Boys, let her go,” and the laborers on the inside of the screen stepped in the clear. The section of the screen hung and one of the laborers on the outside took a bar to prize the section loose. The upper end was pried loose first. The workman on the outside with Chaney said, “Boys, you are not doing that right.” When they knocked the upper end loose first it swung out and the lower or south end held and formed a pivot or hinge and the weight of the section, which was about 175 pounds, caused it to be hurled down and Chaney was thereby injured. According to the testimony of Chaney and some of his co-laborers this was the result of negligence in faking out the sections. According to their testimony the upper end of the section should not have been pried or knocked loose first but the whole section should have been pried loose so that both the upper and lower parts would drop at the same time. They said that if this had been done, Chaney would not have been hurt; that the section would have fallen down as it usually did and that Chaney was in the clear; that the fact that the upper end was loosened first caused the section to be jerked and to be thrown farther away, thereby falling on Chaney’s foot. They also testified that no warning was given.
According to the testimony of the defendant company warning was given that the section was about to fall and Chaney had plenty of time to have stepped back out of the way had he chosen to have done so.
In view of another trial of the case we call attention to instruction number 4 given by the court, although we would not have reversed the judgment on that account for the reason just given. The instruction is one of those objected to by the defendant and reads as follows:
“You are further instructed that since a servant does not assume the risk of a master’s negligence, but assumes only the ordinary risks incident to his employment, the fact that the plaintiff, Chaney, could by the exercise of ordinary care, have discovered the method of removing the section of the screen which produced the injury, and avoided the danger, does not constitute an assumption of risk, where it arose, by reason of the negligence of the master or his agent even though the plaintiff, Chaney, may have been guilty of contributory negligence which would bar his recovery, if there was no negligence on the part of the defendant.”
It will be readily apparent that the instruction in question is erroneous because it required the plaintiff to exercise ordinary care in discovering the negligence of the company when he is only bound by his knowledge and is not required to look out for defective conditions in the appliances with which he is at work. We call attention to the fact that the instruction in its whole tenor is confusing and misleading.
For the error in permitting the plaintiff to read the deposition of Shaw to the jury, the judgment will be reversed and the cause remanded for a new trial.