Fullerton v. Henry Wrape Co. , 1912 Ark. LEXIS 471 ( 1912 )

Hart, J.,

(after stating the facts). It is true, as contended by counsel for appellant, that the rule that an employee is presumed to have assumed the ordinary risks incident to the employment in which he is engaged is subject to the limitation that he must have knowledge not only of the existence of defects but must also be charged with knowledge that the defects exposed him to danger. It is equally well settled, however, that if the danger arising from the defects is so obvious as to be apparent to a person of ordinary intelligence the law will charge the servant with the knowledge of the danger. Davis v. Railway, 53 Ark. 117; A. L. Clark Lumber Co. v. Northcutt, 95 Ark. 291; Asher v. Byrnes, 101 Ark. 197; St. Louis, I. M. & S. Ry. Co. v. Owens, 103 Ark. 61.

The trial judge recognized the principle that the servant's knowledge of a defect is a bar to his action only when it was apparent that he understood the risks created by that defect, but considered that the danger arising from using the machinery “ in its alleged defective condition was unmistakably obvious to the decedent. For this reason the instructions given by the court limited appellant's right to recover to the sole issue of decedent's complaint about the defective condition of the machinery and the master’s promise to repair. Upon this action of the court counsel for appellant assign error.

All of the witnesses testified that the saw revolved very rapidly, and that when it became pinched for any reason the piece of heading which was being sawed would be forced to the top of the saw and would then fly back with considerable force. The purpose of the spreader was to keep the piece of heading from pinching the saw and the purpose of a guard was to keep the piece of heading from flying back and striking the operator when the saw became pinched. The decedent had worked at appellee’s mill for a period of time variously estimated from seven to eleven years and had worked at the saw in question at intervals for two years just preceding the accident. He commenced regularly to operate the saw on the 3d of July preceding the acpident and worked there up to the time of the accident which occurred on the 18th of August. It was the sawyer’s duty to remove, the saw when it became dull or out of set. The decedent wras a sawyer of experience, and the fact that the saw was unguarded, and that the spreader was thinner than the saw, and on this account was likely to cause the saw to become pinched, are facts that were obvious to the decedent. This is conceded by counsel for appellant, but they contend that the decedent did not realize or appreciate the danger from using the saw in its defective condition; but it seems to us that the danger arising from the defective conditions as they are alleged to have existed was equally obvious to the decedent. As we have already seen, the testimony shows that they were known to all the other servants of the company who had no more experience in the use of the saws than had the decedent. If the danger was obvious and patent to them, it was equally so to the decedent, when his age and experience in the use of machinery is taken into consideration.

Moreover, the testimony of the appellant shows that the decedent made complaint about the defective condition of the machinery on the very day of the accident, and the master promised to repair it. The fact that he made the complaint is inconsistent with the idea that he did not realize the danger from using it in its alleged defective condition, and shows that he appreciated the danger which might result from a continued use of the machinery before the alleged defects had been remedied.

No other assignment of error are urged for a reversal of the judgment, and the judgment will be affirmed.