Arkansas Lumber Co. v. Wallace , 99 Ark. 537 ( 1911 )

McCulloch, C. J.

The plaintiff sued his employer, the defendant Arkansas Lumber Company, to recover damages resulting from personal injuries received while at work in the course of his employment. A piece of heavy timber fell on him and inflicted painful and serious injury, and the trial jury awarded damages in the sum of three thousand dollars.

The plaintiff was a carpenter by trade, and was employed by the defendant to do that kind of work. He worked under the immediate direction of his foreman, Will Darby, who in turn was under the general supervision of the mill foreman, Gus Ruff. On the day of the injury the carpenters were engaged in making repairs about the mill, which was being operated at the time the plaintiff was injured. He and another workman were put to work by Darby apd Ruff tearing- out and replacing some rotten sills beneath a runway for logs, which was eight or ten feet overhead. The runway conveyed the logs from the mill shed to .the timber dock, where the lumber was loaded on cars. The lumber was conveyed from the saw to the edge of the mill shed by live rollers, which were operated by the power which run the mill and were controlled by a lever worked by the man who did the work of shifting the lumber from the saw to the timber dock. There were dead rollers on the runway which carried the lumber from the live rollers to the timber dock, the lumber being pushed along over the dead rollers by hand. The dead rollers were the same length as the width of the runway, which was about twenty inches. The piece of timber which struck plaintiff and caused his injuries was 10 by 12 inches in size and 12 or 14 feet long, and it fell from the runway. The evidence tends to show that two of these heavy pieces of timber had been lying on the dead rollers all day and that other pieces of this kind were conveyed from the saw over the live rollers, which were thrust against the pieces on the dead rollers, knocking off the" one which fell upon the plaintiff as he worked below. The evidence shows that plaintiff at the .time was absorbed in his work, and did not look up in time to avert the danger, and it also shows that the noise in the operation of the mill was sufficient to drown the noise of the logs passing- over when the live rollers were put in motion by the lever. The carpenter’s foreman, who was plaintiff’s immediate superior, and the mill foreman both knew that the plaintiff and his companion were at work at that place at that time, and the evidence shows that .the negro who was engaged in moving the timber from the saw was seen immediately after the injury looking at the place where the piece of timber had fallen on the plaintiff.

It is earnestly insisted by learned counsel for defendant that the evidence is • insufficient -to sustain the charge of negligence, but we are of the opinion that the testimony was legally sufficient to make a case for the jury and warranted a finding of negligence. The plaintiff, when injured, was absorbed in his work. This was known to his superiors. It was their duty to take some steps to protect him. The two heavy pieces of timber had been lying on the tramway all day, and they might have anticipated that when other timbers of like weight were pushed against them from the live rollers it was likely to cause the timbers to roll off. It is not sufficient to say that such a thing had never happened before, for, notwithstanding that, the jury might have concluded that it was a danger which should have been anticipated in the exercise of ordinary care. When the foreman put the plaintiff in a place of danger beneath this runway, it was his duty to take whatever steps were necessary in the exercise of ordinary care to protect him from danger. Moreover, the jury were warranted in finding from the testimony that the negro who was engaged in moving the timbers above was guilty of negligence in pushing the heavy timbers from the live rollers suddenly and with force against the two pieces of timber lying on the dead rollers. The runway was only twenty inches wide according to the testimony, and the two pieces of timber might easily be dislodged by the force from the other timbers which came against them from the live rollers. We conclude, therefore, that the evidence was sufficient to sustain the charge of negligence, and that the defendant’s peremptory instruction was properly refused.

There are numerous assignments of error in giving instructions over defendant’s objection and in refusing certain instructions which the defendant requested. After careful consideration, we are of the opinion that no prejudicial error was committed by the court, and it is unnecessary to discuss the instructions in detail.

One of the principal contentions in this respect is that the court erred in refusing to give an instruction which defendant requested telling the jury that if the injuries complained of were the result of accident which the defendant company could not foresee in the light of attending-circumstances, then the verdict should be in its favor. This instruction was a correct statement of the law, but the same idea was stated to the jury in other instructions. All the instructions which the court gave made it essential for the plaintiff to prove by a preponderance of the evidence that the injury was .the proximate result of negligence on the part of the defendant. One of the instructions which the court gave at the instance of the defendant told the jury that to entitle plaintiff to a recovery the jury must find “that the negligence complained of was the proximate cause of the injury,” that “it must appear that the injury was the natural and probable consequences of the negligent and wrongful act, and that it ought to have been foreseen in the light of attending circumstances.” When the instructions which were given are read together, as •they should be, they are free from conflict, and correctly presented to the jury the whole law of the case.

Lastly, it is contended that the verdict is excessive. The evidence adduced by the defendant tended to show that the plaintiff’s injury was slight and would be of temporary duration. On the other hand, the testimony of the plaintiff went to establish the fact that his injury was permanent on account of a stiff knee, that he suffered acute pain for more than two months, being during that time regularly treated by a physician, and that he had been on crutches for about eight months and entirely incapacitated from labor; that he had an earning capacity before the injury of $1.85 a day, and had not been able to work since that time. Plaintiff also testified that he was badly bruised about the body, and received internal injuries which caused spitting of blood for some time. The award of damages was not, we think, excessive, and the judgment will be affirmed.