118 Ark. 128 | Ark. | 1915
AppeEant was engaged in operating a sawmill in Poinsett County, Arkansas, and appellee received personal injuries while working at the mill as .an employee of appellant, and this is an action to recover compensation for such injuries. Appellee was engaged in the work of tailing the edger, as it is termed by the witnesses; that is to say, he was receiving the pieces of timber from the edger and forwarding the same on down the roller to be conveyed out to the proper places. He charges negligence on the part of a fellow-servant in reversing the live rollers so as to cause two pieces of timber to be jammed together and .catch his. fingers. One of liis fingers was mashed entirely off, and the end of another finger was mashed or bruised. The jury awarded damages in the sum of $250.
Appellee testified that iat the time he received his injuries, he was endeavoring to get a piece of lumber out ■ from under a cross-tie which was to be passed on down the rollers; that the rollers were standing still qt the time and were not working well that day from some cause; and that one of his fellow-servants, Barker, by name, who was working at .a cut-off saw a few feet distant, negh■gently reversed the rollers so .as to cause another piece of timber to run back up against the cross-tie he was handling, and in that way his fingers were caught between the two pieces of timber. His testimony tends to show that it was his duty to get the piece of lumber out from under the cross-tie so that the tie could be passed on down the rollers, and that Barker was standing in a few feet of him and was looking at him when the rollers were reversed.
The court, in addition to giving several instructions, requested by .appellant, submitted the case upon the following instruction given on the court ’® own motion: “No. 4. If you find from the evidence that the plaintiff, while in the performance of his duty, placed his hand upon a piece of timber, then upon the roller, for the purpose of removing the isame therefrom, and exercising due care for his own safety, and that an employee of the defendant then in charge of the manipulation of the roller, without notice to the plaintiff, suddenly reversed said roller, causing another timber to be jammed against said timber upon which the plaintiff’s hand was resting, thereby causing the injury herein complained of, the plaintiff will be entitled to recover for said injury. ’ ’ That instruction correctly defined the issues to the jury.
: Counsel for appellant rely upon the case of Chicago Mill & Lumber Co. v. Johnson, 104 Ark. 67, as sustaining the correctness of this instruction. The facts of that case were, however, different. There the evidence showed that the fellow-servant who committed the alleged act of negligence owed the injured employee no duty except not to injure him after discovering ¡Ms peril. The difference in the two cases is that in the one cited, a servant, without being affirmatively charged with the duty of taMhg any steps to protect his fellow-servants wMle at work, was held not to be chargeable with negligence unless he failed to exercise care after discovering the peril; whereas, in the present case, the fact is that the fellow-servant was manipulating the rollers and was charged with the duty of exercising care to see that his act did not result in injury to another servant. The men were working together in a. few feet of each other, and it was the duty of appellee’s fellow-servant, before reversing the levers, to exercise care to see whether any other servant was in position where he was likely to be injured by this 'act of reversing the levers. It would have been improper, therefore, to tell the jury that appellant would not be responsible for Barker’s act unless the latter had discovered the perilous position of appellee, for it was the duty of Barker, before setting the rollers in motion, to see that other employees working there were not thereby placed in peril.
We think the instructions were ¡correct, and that no error was committed in refusing those asked by appellant.
There is no error in the record which calls for a reversal of the ease, so the judgment is affirmed.