115 Ark. 350 | Ark. | 1914
(after stating the facts). The only grounds of negligence alleged in the complaint are that appellant failed to keep the ladder from which Schultz fell in a safe condition, and failed to warn him of such unsafe condition.
The uncontradicted testimony shows that the rungs of the 'ladder were rotten, .and in an unsafe condition, and there was testimony tending to show that no warning was given to Schultz of the unsafe condition of the ladder. So, if appellant owed any duty to Schultz to keep the ladder in a safe condition or to warn him of such condition, then the allegations of negligence have been fully sustained. But, as we view the uncontradicted evidence, no negligence could ¡be predicated upon the failure of appellant to keep the ladder from which Schultz fell in a safe 'Condition, nor upon its failure to warn him of the danger of using the same; for the undisputed evidence shows that appellant owed no - duty to Schultz either to keep the ladder in a safe condition or to warn him that the ladder was unsafe.
The duties of Schultz at the coal chute were to trim the lamps and clean the globes. The lamps were hung on brackets. The brackets were about eighteen inches ■below the running board or ledge and it was about twelve inches from the top of the bracket down to the lamp. It was about two feet from the building out to the lamp. A pulley was attached to the bracket. The lamp was hooked on the pulley with a chain. The chain ran through the pulley and was fastened to the lamp by a hook. The chain came down and was hooked to one of the posts, about four or five feet above the ground. One in cleaning the lamps would use a rope, attaching it to the chain that extended from the lamp down near the ground. The weight of the lamp would cause it to come to the ground to be cleaned.
The electrician under whom Schultz worked, testified that he instructed him about the lights on the coal chute. He told him that it was his duty to trim the lights and wash the globes, and showed him how to do it, according to the method above stated. He told Schultz that “if there was anything wrong at those junction boxes to let witness or the other electrician know. He showed Schultz how to do his work.”
Another witness, who had charge of the electric equipment and of the lights at the coal chute, testified that if the electric wiring was out of fix and anything had to be done to the lights except to clean them that the electrician would look after that. Schultz was not expected to look after the repairs. All he had to do was to clean the globes and look after the lights around the coal chute. He was to clean the lamps, clean the globes and repair the extension lights that were about the power house. The testimony does not show that it was the duty of Schultz to fix or clean the incandescent lights, or that the incandescent lamps were out of repair.
There was testimony on behalf of the appellee tending to show that the lamp at the southwest corner would not let down because the pulley was gone and there was nothing -but the holt left for the chain to run on and the chain would not run on it.
The evidence was sufficient to warrant a finding that ■the chain which was used for the purpose of lowering the lamp at the southwest corner on the day that Schultz received his injury would not work becáuse of the fact that the pulley was gone, and on that account the lamp could not be raised or let down.
There was also testimony on behalf of the appellee . tending to show that the hangings of the lamps that were of metal, were badly bent; that they had been repaired a number of times, and that they were in a very insecure condition, but there was no testimony on his behalf to the effect that the lamps on the east side were in such condition that they could not be let down to the ground.
There was testimony by witnesses on behalf of the appellee tending to show that at times they saw Schultz on the running board or roof of the coal chute, engaged in trimming and cleaning the lamps. One witness testified that he saw him on the running board three or four different times, working on those lights, cleaning the globes and putting in carbons. Another witness testified that on the morning of the day that Schultz was injured the witness saw Schultz on the lower running board on the west side of the coal chute fixing lights. He was cleaning a globe. Still another' testified that he saw Schultz “lots of times working on both sides of the chute. He would work the lights on one side and go up the side and work the other side on that platf orm. He would. go up the ladder and come to this end and down that ladder and work that way. All I ever saw him do would be to go from one light to the other and fix his light. ’ ’
Another witness testified that he had seen the lights cleaned from the running 'board, and that was the only place he had seen them cleaned. He was asked how many times he had seen them cleaned from the runnig board and stated that he “made no memorandum of that.” He saw Schultz cleaning them from the running board but one time.
It thus appears from the undisputed evidence that the method adopted by the ¡appellant for cleaning the lamps was by letting the same down to the ground by a chain, in the manner above described, and that when, for any reason the lamps could not be let down for cleaning by this method because of any defect, it was the duty of Schultz to notify one ¡of the electricians in charge,' so that such defect could be repaired; that it was not the duty of Schultz himself to make these repairs. Schultz was only an apprentice.
While the evidence shows that Schultz went upon the running board three ¡or four times for the purpose of cleaning the lamps, and that ¡Schultz and others were seen “lots of times” cleaning and working about the lamps from the top of the running board, there is no evidence whatever tending to show that this method of cleaning the lamps, adopted by the employees themselves, was brought to the knowledge of any division electrician, the electric engineer or electricians who had the work in charge and whose duty it would be to see that the methods adopted by the appellant for doing the work were followed by its employees, or, if not followed, to report the matter to their superiors charged with the duty of enforcing the methods adopted for the safety ¡of the employees whose duty it was to trim the lamps, clean the globes, etc.
There is no testimony, in the first place, sufficient to warrant a finding that the employees had established a custom for cleaning the lamps, globes, etc., contrary to the method that had been prescribed by the appellant for doing that work; and, in the second place, there was no evidence whatever to show that the method adopted by Luther Schultz was brought to the knowledge of the superior officers of the appellant over Schultz so as to make appellant liable for a failure to provide a safe place for doing the work in the manner that he was performing the same at the time of his injury. The method adopted by Schultz is not shown to have been so general and continuous as to warrant a presumption of fact that the agents of appellant charged with the duty of directing Schultz knew of the method he had adopted for cleaning the globes, and that they had acquiesced therein. On the contrary, the testimony of the agents and servants of appellant was to the effect that the only method for the cleaning of these globes and repairing the lights known to them was that of letting the same down to the ground in the manner described; that the ledge or running board was not built for the purpose of having them cleaned or repaired thereon; that it was dangerous to clean them in that way and that it could not be done. Some of them stated that one could not stand on the ledge or running board and repair any of the lights or wires; that they could only be cleaned and repaired by letting them down.
There was testimony to the effect that the ladder from which Schultz fell was put there for the use of the earpénters, and that it was not intended to be used ■by any one else.