Southern Cotton Oil Co. v. Campbell , 106 Ark. 379 ( 1913 )

Wood, J.,

(after stating the facts.) 1. Appellant insists here for the first time that the complaint does not state a cause of action. There was no demurrer to the complaint. The testimony was fully developed without objection, tending to establish negligence in certain particulars, which we will hereinafter mention, and sufficient to warrant the finding of the jury and the judgment of the court. Therefore, even if the complaint in the first place had failed to state a cause of action this court would treat the same as amended to conform to the proof. Texarkana Gas Co. v. Orr, 59 Ark. 215; Fletcher v. Ark. National Bank, 62 Ark. 265; St. L., I. M. & S. Ry. Co. v. Bird, 106 Ark. 177.

Moreover, we are of the opinion that, while the complaint was loosely drawn and in some respects defective, yet it was sufficient even if it had been tested by demurrer. It showed a relation of master and servant and contained allegations sufficiently specific to charge the master with negligence in failing to exercise ordinary care to furnish the servant with safe machinery and a safe place in which to perform his work. It charged that the master was negligent in furnishing appellee defective belts (describing the defect), by failing to use due diligence in discovering the defect, and by not repairing the same after having knowledge of its defective condition; and that the appellant was negligent in furnishing him an unsafe place in which to work, “by failing to furnish him sufficient lights to enable him to see how to perform his labors at night time, and by crowding said gin-stands so close together as to shut off the light furnished and thereby concealing from him defective condition and dangerous places, where appellee had to work in the absence of sufficient light.” These allegations were sufficient to admit proof of specific facts, which was made.

2. Appellant contends that the evidence was not sufficient to support the verdict.

One witness testified that he was in the lint room with Robert Campbell when he was hurt, about ten feet from him. He was looking at him. Campbell had started to the gin-stand and before he got there the belt broke and struck him and knocked him unconscious. “It, says t'he witness, knocked him down sorter over the gin-stand, across the aisle; he didn’t know anything at all.” Witness found a little blood on his head. The belt hit him. Witness knew that it did because he was “looking straight down the aisle, looking at him. I could tell when it popped that it hit him. Was looking at him when it knocked him down. ’ ’

Another witness stated that he did the same work in the day time that Robert Campbell did at night, at the same gin-stands. The belt was defective. He saw it about 3 o’clock during the afternoon before Robert Campbell was hurt. He told “a fellow to tell Arthur Frazier to fix it.” Frazier was the official belt inspector and repairer. His duties were to see after the belts and see that they were laced.

A witness testified that he was told by one of the employees working at the gin-stand to tell Frazier that the belt was out of repair and was nearly in two, but that lie forgot to tell Frazier. This witness stated that he was Arthur Frazier’s assistant. He was paid more than the other employees because of his additional responsibilities. The night foreman “jacked me up several times,” says he, meaning that he was not fully performing his duties.

Arthur Frazier testified as follows: “My duty was to fix the belts. I had charge of the belts and watched them. I have seen lots of belts similar to this break. I stayed there at night. That is my work. ’ ’ When asked how often he got around to see if the belts were in good order he stated: “It'is according to what I have to do. The first thing I do is to inspect the belts in the lint room; that is when I go on at 7 o’clock. It takes me about two hours to make the round. I go back over it again when I get around; hadn’t been long left Campbell when he was hurt. I examined the belt when I was there just before Campbell was injured.”

The testimony showed that Campbell was injured between 4 and 5 o’clock in the morning.

Another witness stated that he found Robert Campbell lying in the aisle by gin-stand No. 4. The belt was piled up in the aisle and a part of it was on him. Witness moved him. This witness stated that the belt was nearly a foot wide.

A witness, in describing the defective condition of the belt, stated that it was broken about half way across. It was not quite enough to stop it, and didn’t stop it. Witness didn’t have time to go to work and finish fixing it, and so he told another employee to tell Frazier to fix it.

The testimony was voluminous, but we shall not undertake to set it all out or to analyze it. The above is sufficient to show that the belt on the gin-stand about which appellee was working was defective; that the appellant had notice of the defect; that its foreman and belt inspector, whose duty it was to make examinations during the night for any defects that might occur in the belts “made the rounds” and negligently failed to discover this defect and to repair it. The appellee had no notice himself that the belt was defective and appellant failed to warn him that same was defective. The above testimony, in short, was sufficient to warrant the jury in finding that the appellant failed to exercise ordinary care tp discover the defective condition of the belt and to repair the same, and that such negligence was the proximate cause of the injury to appellee.

The. appellant earnestly insists that the evidence showed that it was physically impossible that appellee could have been hurt in the manner indicated, but we are of the opinion, after a careful examination of all the testimony, which it would serve no useful purpose to set forth in detail, and discuss at length, that it was a question for the jury and that there was ample evidence to support the verdict.

The argument of counsel for the appellant is exceedingly plausible, and had the jury accepted his theory we could not have disturbed its finding, but, on the other hand, as the jury have not accepted that theory of the case, as presented by the evidence in the record, the only question for us to consider is whether or not there is sufficient evidence to support the verdict as the jury has rendered it.

3. Appellant contends that it has discovered since the trial that appellee had his shoulder dislocated before the time of the injury alleged in the complaint, and that this dislocation was first due to a fall while Campbell was drunk, and was afterwards frequently caused by epileptic fits; that during his fits he had fallen from porches and such places, causing, his arm to become dislocated. Affidavits were attached to the motion tending to show these facts.

We are of the opinion that the appellant did not show proper diligence in seeking to procure this evidence before the trial. Appellant concedes that before the trial it had knowledge that plaintiff was an epileptic, but it says it liad “no knowledge that he frequently fell or had fallen during these fits.”

Epilepsy means, “The falling sickness; so called because the patient generally falls suddenly to the ground.” Webster’s Dictionary.

Since appellant concedes that it had knowledge that appellee had epilepsy before the trial, it follows from the very definition of the term that appellant had knowledge that appellee would fall during his epileptic fits, and having such knowledge it must be held to have known of all consequences likely to result by reason of a fall during these epileptic fits, and that the dislocation of the shoulder might have reasonably resulted from such fall.

In the case of Olmstead v. Hill, 2 Ark. 346, the court held that a party, to entitle himself to a new trial on the ground of newly discovered testimony, must satisfactorily shoAV to the court: (1) That, in preparing the case for trial he was guilty of no neglect or laches; (2) that the new evidence sought to be introduced could not have been procured by due diligence at the former trial. See also Halliburton v. Johnson, 30 Ark. 723; Peterson v. Gresham, 25 Ark. 380; Ark. Mut. Fire Ins. Co. v. Stuckey, 85 Ark. 33.

Therefore appellant has not shown that it exercised proper diligence in securing the evidence it now offers to produce. Knowing that appellee had epileptic fits that were well calculated to cause a dislocation of the shoulder it was appellant’s duty in preparing for trial to have made inquiry as to appellee’s physical condition before the alleged injury of which he complains in order to ascertain whether or not the accident was the cause of the injury, or whether, or not the injury resulted from some other cause. The court did not err in overruling the motion on this ground. It was within the court’s discretion.

In Ward v. State, 85 Ark. 179, we said: “Motions for a new trial on the ground of newly discovered evidence are addressed to the sound legal discretion of the presiding judge; and it is only in case of apparent abuse of that discretion, or of justice, that this court interferes.” Citing Anderson v. State, 41 Ark. 229; Armstrong v. State, 54 Ark. 364.

4. Most of the questions appellant objects to as leading and which it insists were prejudicial error to allow we do not find to be leading questions. They did not suggest the particular answer but left the witness the alternative to answer yes or no, and to make his explanation. Kirby’s Dig. 3136. The questions, for the most part, were in regard to certain situations and conditions of the gin-stands, lights, belts, etc., in the place where appellee was working.

Even if it were conceded that some of the questions were leading, these would not be reversible error under the rule announced in Wallace v. Bernheim, 63 Ark. 108-120, where we said: “While the general rule is that a party should not be allowed to put questions to his own witness that suggest the answer desired, still there are exceptions to this rule, and the question of when a party should be allowed such a privilege rests largely in the discretion of the presiding judge.” See also Scott v. State, 75 Ark. 142.

5. Appellant seeks to have the judgment reversed because of the alleged conduct of the trial court in making remarks while ruling upon appellant’s objections to certain questions, and because of certain questions which the court propounded to the witnesses while on the witness stand and during the progress of the examination. But the appellant concedes that “no exceptions were saved to the court’s conduct in this respect” at the trial. In order to obtain a review of the question of the propriety of remarks or conduct of the judge during, the trial, the remarks must be specially called to the attention of the court when made, and a correction thereof asked, or they must be objected to and exceptions saved at the time. 38 Cyc. p. 1324, par. 12, and note.

Finding no errors, the judgment is affirmed.