Chapman & Dewey Land Co. v. Woodruff , 116 Ark. 189 ( 1915 )

Kirby, J.,

(after stating the facts). It is contended that the court erred in refusing said requested instructions and striking from the files the amended answer. Appellee relied upon the failure to. observe 'the custom or practice and the agreement alleged to exist between him and his co-workers in the felling of the trees, to warn him, that the tree being sawed was about to fall, in time for him to get out of its way as negligence authorizing him to recover for the injury, and in support of this adduced testimony tending to show that there was an agreement between them to this effect, and that it was' the custom to give him the warning in accordance with the agreement. The proposed instructions told the jury that unless there was such an agreement on the part of his co-employees to warn him that the tree being sawed was about to fall, that there was no duty resting upon the sawyers to give him such notice and consequently no negligence authorizing a recovery from appellant for the injury to appellee. If there was no negligence chargeable to appellant company, there of course could be no recovery of damages from it by appellee for Ms injury. The negligence, carelessness or omission of duty of the other servants of appellant corporation, engaged in the work of cutting the timber with him was the negligence of the corporation, the appellee being in the exercise of due care at the time -of the injury, under our statute. Section 1, Act 69, Acts 1907.

Appellee and the sawyers were engaged in cutting the timber, appellee notching the trees ahead of them, and but for their custom of notifying Mm or their agreement to do so, that the tree they were sawing was about to fall, that he might avoid the danger from it, owed him no duty to give such warning unless they discovered him in a position of peril in time to have given him the warning and enabled him to escape it. But for such agreement or custom he would have been expected to make his own place of work safe and avoid injury while performing it and would doubtless have done so.

It pray be that the instructions given by the court upon appellee’s request did not clearly and definitely submit this question to the jury, since no duty arose upon the part of the sawyers, or either of them, to notify appellee when the tree was about to fall, but for the custom of doing so or the agreement to do so, until after they discovered him to be in a position of peril. It is not questioned that they did not discover his perilous position until it was too late to save him from being struck by the falling tree after the warning was given. It was given after such discovery, but not in time for him to avoid the danger.

(1) Said instructions asked by appellee were not correct statements of the law, however, and the court did not err in refusing to give them. If it was the custom of the sawyers to warn appellee who was notching the trees, at the time they were ready to fall after being sawed, or if they had agreed to do so, and in either event failed to give the warning, in time for him to avoid the danger, as the evidence tended to show, the failure would constitute negligence for which the master would be liable.

The instructions refused tell the jury that there was no duty resting upon the sawyers to give notice or warning to Woodruff that the tree would soon fall, and that a failure to give such warning did not amount to negligence and would not justify a finding in 'his favor, unless they had agreed to give the warning and failed to do so, leaving out of consideration the question of whether it was customary to give such warning.

(2) The court did not err in striking the amended answer from the files, denying that the appellee was its servant at the time of the injury, while its first answer admitted the fact of his employment. It would have changed entirely the issue, and it did not attempt to disclose which corporation was appellee’s employer in the service in which he was engaged, nor was it proposed to be made until after a claim for damages against the other company which had not been sued, was barred by the statute of limitations if pleaded. Appellant knew, or should have known, at the time the suit was brought, whether or not appellee was in its employ, and no showing was made that all the facts relative thereto were not as well known to it at the time of making its original answer, as when the amended answer was filed. There was no abuse of discretion in striking it from the files. American Bonding Co. v. Morris, 104 Ark. 276.

Finding no prejudicial error in the record, the judgment is affirmed.