293 S.W. 1002 | Ark. | 1927
This is an action by appellee to recover damages for a personal injury sustained by him in appellant's factory, in which several fingers of his right hand were torn off while working on a dovetail machine. He alleged in this complaint that his injury was the result of the negligence of appellant in furnishing him an unsafe place in which to work, in that he was required to work upon this machine, with the cogs which operate the machine located in a dark place, without any guards about them, which, he alleged, could have been done without interfering with the operation and efficiency of the machine. The power which operated this machine was brought to it by a belt operating over a pulley, and, when the operator wished to stop the machine, he did so by pushing the belt on to an idle pulley by means of a bar of wood located underneath the machine, in close proximity to the cogs. In attempting to stop the machine by shifting the belt to the idle pulley, his right hand slipped off the bar of wood and was caught in the cog-wheels, resulting in the injury aforesaid.
Appellant denied the allegation of negligence, and pleaded assumption of risk.
The plaintiff, appellee, was the only witness in the case, and he testified very frankly about the facts in the case. At the conclusion of the testimony appellant requested a peremptory instruction, which the court *764 denied. The case was submitted to the jury, under instructions not complained of here, which resulted in a verdict and judgment of $2,000 against appellant, from which comes this appeal.
The only ground urged here for reversal is the refusal of the court to instruct a verdict for appellant, because the uncontradicted evidence of the appellee himself shows that he assumed the risk of the injury complained of, and of any negligence of appellant in the manner charged, and that therefore the court should have said as a matter of law that he was not entitled to recover. We agree with counsel for appellant in this contention. The substance of the proof is that appellee had been working for the appellant continuously from the 28th day of December, 1921, until the date of his injury, which was on October 22, 1925; that he was injured on one of the older dovetail machines, which he had operated at intervals from the time he began working for appellant to the date of his injury. When he first began working on this machine, it was located on the floor of the factory above, but, for approximately two years before the date of the injury, it had been located on the ground floor of the factory, and had a different instrumentality for switching the belt to the idle pulley, but he had operated this machine on the lower floor at intervals as much as three or four hours at a time. He knew the machine did not have a guard on it to protect his hand from getting into the cog-wheels, and he knew that it never had had such a guard; he knew the location of the shifting lever relative to the cogs, that is, how close the end of the shifting lever came to the cogs; he knew that, if he got his fingers into the cogs, he would be injured, and says that, when he attempted to shift the belt at the time of his injury, he saw the shifting lever. He had never registered any complaint to appellant or to any of its officers or agents about the absence of a guard or that the machine was dangerous to operate in its then condition. He admitted that he was an experienced employee, thirty-five years of age, and represented *765 himself to be an experienced machine man when he applied for employment with appellant, and had been engaged in operating this and other machines for appellant for the past four years. There was a big electric light right over the machine, only a short distance above it, and was burning at the time appellee was hurt.
In view of the undisputed facts we think it was the duty of the trial court to have instructed a verdict for the appellant.
In the case of Hunt v. Dell,
There is a distinction between the defenses of assumed risk and contributory negligence, and nowhere is this distinction better stated than in an opinion rendered by Judge RIDDICK in Choctaw, O. G. Rd. Co. v. Jones,
"In other words, the defense of assumed risk rests on the fact that the servant voluntarily, or at least without physical coercion, exposed himself to the danger, and thus assumed the risk thereof. Having done this of his own accord, he has no right, if an injury results, to call on another to compensate him therefor, whether he was guilty of carelessness or not. Smith v. Baker (1891), Appeal Cases, 325; Opinion of Lord Bowen in Thomas v. Quartermaine, 18 Q. B. Div. 685."
Again, on page 374, this language is used: "In the application of the doctrine of assumption of risks a distinction must be also made between those cases where the injury is due to one of the ordinary risks of the service and where it is due to some altered condition of the service, caused by the negligence of the master. The servant is presumed to know the ordinary risks. It is his duty to inform himself of them; and, if he negligently fails to do so, he will still be held to have assumed them. The decision in the recent case of Grayson-McLeod Co. v. Carter,
This is not a case where the servant has made a complaint to the master of the unsafe condition of the machinery and a promise had been made to correct the condition, as was the case of St. Louis, I. M. S. R. By Co. v. Holman,
But, in the case at bar, the appellee was not only a man thirty-five years of age, but was a man of great experience in the operation of machinery in general, and of this particular machine, and knew the exact location of the cog-wheels and the location of the shifting-lever and its distance from the cog-wheels. He knew what would happen to him if he should get his hand into the cog-wheels. We therefore hold, as a matter of law, that appellee assumed the risk of the danger incident to that employment.
Contributory negligence, on the other hand has been abolished as a complete defense in this State as to all corporations, except while engaged in interstate commerce (7145, C. M. Digest); but the doctrine of assumed risk still remains in force and effect in this State, and has been sustained by a long line of decisions of this court, and has been applied in numerous cases where the undisputed facts are applicable, such as in this case, as a complete bar to recovery.
The result of our views is that the court should haven directed a verdict in appellant's favor, and, for the error in failing to do so, the judgment is reversed, and, it appearing that the evidence has been fully developed, the cause will be dismissed.
It is so ordered. *769