Booth Flynn Company v. Pearsall

STATEMENT OF FACTS.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff while working for defendant by being struck in the eye by a sliver broken from an iron gas pipe by a block of wood being thrown against it by a fellow-servant.

R. E. Pearsall, the plaintiff, was a witness for himself. According to his testimony, he was a farmer, forty-three years of age, and was employed by Booth Flynn Company during the fall of 1928 to help lay a gas pipe line. His work was to help raise the pipe to a level so that it could be welded at the joints. The pipe was leveled up by laying under it blocks of wood something like four feet long and dour inches thick and six inches wide. Usually the blocks of wood were distributed from a wagon which was hauled along the ditch in which the pipe was laid. At the place where they were working on September 1, 1928, there was a hill so steep that a team could not pull a load of blocks over it, and the wagon was unloaded on the side of the hill opposite where the pipe was being laid in the ditch or excavation made for it. The foreman sent the plaintiff and others over the hill to bring the blocks and distribute them along the ditch. The plaintiff was asked to explain how he got hurt and answered as follows:

"Well, some of the other boys and I went over the hill and got them and carried them back down to where the pipe was to be leveled up, and when we got there there was a man right in front of me and I started to lay mine down, and just as I stooped over to lay mine down the workman behind me come up and throwed his down and hit the pipe, right by the side of me and knocked a scale off the pipe or something another right at that particular time, something another sharp just hit me in the eye and cut a gash in my eye."

On cross-examination, he stated that there were six or seven of the laborers that went over the hill for the purpose of bringing the blocks back. The plaintiff was carrying one block at the time, and was bending over to lay it down when the particle of metal struck him in the eye. The scale or sliver struck him in the eye just as the laborer next to him threw a block down from, his shoulder on the metal gas pipe. Some of the laborers would lay down the blocks of wood by stooping over as did the plaintiff, and some would just throw them down.

Other evidence for the plaintiff tended to show that the injury from the sliver or particle of metal caused the plaintiff's eye to be injured so badly that the eye-ball had to be removed.

According to the evidence for the defendant, the injury to the eye of the plaintiff would have responded to treatment and was not a serious one had plaintiff allowed his eye to be treated until it got well.

There was a verdict and judgment for the plaintiff, and the defendant has appealed. (after stating the facts). According to the settled law of this State, it is the duty of the master to exercise ordinary care to provide his servants with a reasonably safe place in which to work and reasonably safe appliances with which to work. Woodson v. Prescott Northwestern Ry. Co., 91 Ark. 388, 121 S.W. 273; and International Harvester Co. of America v. Hawkins,180 Ark. 1056, 24 S.W.2d 340.

It is also well settled that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. Ultima Thule, Arkadelphia Mississippi Rd. Co. v. Benton, 86 Ark. 289,110 S.W. 1037; and Pittsburg Reduction Co. v. Horton, 87 Ark. 576,113 S.W. 647, 18 L.R.A. (N.S.) 905.

In cases like this, the burden of proof is upon the injured servant to show negligence on the part of the master or of a fellow-servant in the failure to perform his duty to him as such fellow-servant which proximately caused or resulted in his injury. Cleaver v. Bert Johnson Orchards, Inc., 175 Ark. 223, 298 S.W. 1016.

This burden was not met by the plaintiff in the case at bar. It cannot be said that, even though the sliver which struck the plaintiff in the eye came from the iron pipe, when his fellow-servant threw down the block of wood on it, the master or fellow-servant was guilty of negligence. The work was being done in the ordinary and customary way of doing such work, and there is nothing to show that it was not reasonably safe. According to the plaintiff's own testimony, some of the laborers would bend down in placing the blocks on the iron pipe, and others would let them fall or throw them down on the pipe. It could not have been reasonably anticipated that the act of letting fail the block of wood on the iron pipe would cause a sliver to be knocked from the pipe and injure a fellow-laborer.

No testimony of any character was introduced tending to show that the pipe was made of defective material or that the way of distributing the blocks adopted by the defendant was not a safe way in which to do the work. According to the plaintiff's own testimony, his injury was the result of an unfortunate accident for which no one was to blame. It was an unanticipated and unexpected occurrence which no reasonable person would have likely foreseen. It was an unavoidable accident and a complete defense against liability on the part of the defendant. Therefore, the peremptory instruction requested by appellant should have been given, and, for the error in not so doing, the judgment will be reversed; and, inasmuch as the cause of action seems to have been fully developed, it will be dismissed here.