123 Ark. 119 | Ark. | 1916
Appellee sued appellant to recover damages for injuries received by him while working for appellant at its sawmill. There was a trial before a jury which resulted in a verdict for appellee and from the judgment rendered, appellant prosecutes this appeal.
Roy Irons, the appellee, in his own behalf testified substantially as follows:
I am twenty-one years old. At the time I was injured my regular work was running the cut-off saw at appellant’s mill. On the morning I was injured the foreman directed me to help the man operating the ripsaw. Lumber buggies were used to bring in the lumber to the rip-saw. The buggies were, loaded with lumber and pulled in to the mill by mules. Then the man who operated the rip-saw would take hold of the lumber buggy and pull it by hand. I would get by the side of-the wheel and push the lumber buggy towards the ripsaw. While I was engaged in pulling the buggy wheel, all of a sudden the opposite wheel went through the tram and threw me right over on top of the wheel. There was a sudden stop when the wheel went through the floor and this threw me against the wheel. The injury ruptured me.
S. V. G-rissom for the plaintiff testified: I was running the rip-saw and plaintiff, was off-bearing for me on the day he w-as injured. We were pulling a loaded lumber buggy up to position by the rip-saw, at the time appellee was injured. I was guiding the buggy and pulling it, and appellee was pushing at the wheel. There was a place sluffed off of the floor in the tram and one of the wheels went through the floor when it reached the defective place. When the wheel fell through the floor appellee was jerked over on the wheel. I observed the plank after the buggy was taken out. The plank was rotten .and the rotten place was about eight or ten feet from the machine I was operating. Two or three days before that time, I noticed a crack in the floor at the place and notified the foreman that it was dangerous and should be repaired. He promised to do so. The floor was not completely out at the place where the wheel went through it, but sloped off and the plank showed itself to be defective if any one should observe it closely. The crack was something like fourteen inches long. It was also shown that the joists on the floor were about eighteen inches apart and running east and west. The planks were laid across the joists running north and south and were laid in the same direction, with regard to the place of the injury as the rip-saw.
Will Carmichael, the mill foreman testified as follows : Appellee was my brother-in-law and worked under me. I remember him telling me that he fell on the wheel and ruptured himself, about the time he was injured. He did not stop work. He did not turn in any report that he was hurt but worked on under me for something like a year. I don’t remember whether Grissom came to me about the hole in the floor or not. It was my duty to look out for holes in the floor and repair them. Appellee regularly worked at the cut-off: saw which was situated near the rip-saw.
On the other hand it is insisted by counsel for the appellee that the court was right in submitting the question to the jury. Many illustrative cases are cited by counsel on both sides to sustain their respective positions.
When the testimony adduced by appellee is considered in the light most favorable to him, we do not think it can be said as a matter of law that he assumed the risk. It is true Grissom stated that there was a crack in the floor some fourteen inches long and that he had seen it two or three days before the injury occurred, but he also stated that the defective plank sloped off and that only a crack was shown. He was asked if anybody could see the defect and replied .that .he did not know whether anybody could see it or not; that it was not entirely through the plank.
It is true the regular job of appellee was at a cutoff saw which was situated near there, but his duties did not cause him to walk over that portion of the tramway, so far as the record discloses. He had hauled several loads over the tramway on the day he was injured and on that day and on other days, had noticed that other portions of the tramway were defective but said that he had not noticed any defect in the tram at the place where he was injured.
We do not think it can be said as a matter of law, under the circumstances, that the defect was an obvious one. The joists on the floor were laid east and west and were about eighteen inches apart. The planks were laid across the joists running north and south. According to Grissom’s testimony, while the crack was something like fourteen inchés long, it was only a crack and the defective condition of the plank did not show all the way through.
It is a matter of common knowledge that more or less saw dust would fly around and would be lighting on the floor near the. rip-saw. Anyone walking along there and seeing the crack might have thought it was caused by the plank shrinking or not being laid close enough together, instead of being caused by the rotten condition of the plank. At least these matters' were legitimate inferences which might have been drawn by the jury.
It is true appellee continued to work but it may be fairly inferred from his testimony that he did this because he did not realize the gravity of his injury. Two physicians testified for appellant and stated that they did not believe from the testimony detailed by appellee, that the rupture was caused by him falling on the wheel when it fell through the floor. On the othér hand a physician for appellee testified that the rupture could have been caused in that way; and from appellee’s statement was likely caused that way.
Immediately after the accident happened appellee complained of pain and exhibited his person to Grissom, who testified that it showed indications of injury. Appellee went to a physician after working hours on the day he was injured and stated that the physician told him he had been ruptured. As above stated the testimony of appellee and his witnesses we think, warrant a verdict in his favor.
It is insisted by counsel for appellant that the verdict is excessive. Appellee recovered a verdict of $1,500.
Two witnesses for appellant testified that hernia can be cured by a simple operation and that there was but little danger in undergoing the operation; that most operations for hernia are successful. On the other hand a physician who had examined appellee testified that he found a complete indirect inguinal hernia. He further testified that there is always an element of uncertainty in operations and- that there is some danger attached to an operation for hernia; that appellee was permanently injured and would have to wear a truss for the, balance of his life.
The court instructed the jury in effect, that it was the duty of appellant to exercise ordinary care in providing appellee with a safe place in which to work and that while appellee assumed the risks ordinarily incident to his employment, he did not assume any arising from any negligence of appellant in failing to discharge its duty towards him.
Counsel for appellant insists that the judgment should be reversed because this instruction ignored appellant’s defense of assumption of risk. No specific objection was made to the instruction on the ground that it failed to include the claim of ¡assumed risk. At the request of both appellant and appellee, the court gave other instructions on the question of assumed risk. It is conceded that the instruction deals correctly with the phase of the case therein presented. If appellant desires that this instruction should contain qualifications of the claim of assumed risk, it should have made specific objection in the trial court. A. L. Clark Lumber Co. v. Johns, 98 Ark. 211; St. L., I. M. & S. Ry. Co. v. Carter, 93 Ark. 589; Arkansas Midland Rd. Co. v. Rambo, 90 Ark. 108; St. L., S. W. Ry. Co. v. Graham, 83 Ark. 61.
Counsel for appellant to sustain their contention rely on the case of Helena Hardwood Lumber Co. v. Maynard, 99 Ark. 379. The court told the jury that the master was negligent in furnishing a defective log loader; and directed it to find for the plaintiff if the injury was due to the fact that it was defective unless the decedent was guilty of contributory negligence. The court in that case said the instruction as drawn not only excluded the defense of assumed risk but was in conflict with the instruction given on defendant’s part relative to assumed risk and on that account was erroneous and prejudicial.
It follows that the judgment will be affirmed.