F. Keich Manufacturing Co. v. Wallace

Hart, J., (after stating the facts). The main reliance of appellant for a reversal of the judgment is that the court erred in giving instruction No. 1, which reads as follows: “You are instructed that if Baker, as engineer, knew, or, in the exercise of reasonable care and observation, should have known, that plaintiff was attempting to turn the flywheel ‘off center’ and that it was necessary that the same be done before the engine could be started; that in so doing plaintiff was in the discharge of a duty and in the line of his employment, and if you find, while plaintiff was so doing, Baker turned on the steam, or, having previously turned it on, neglected to turn it off, and that this resulted in the rapid revolutions of the flywheel, causing the injuries to plaintiff, then this conduct on the part of Baker was negligence as that term has been defined, and your verdict will be for plaintiff, unless you further find that he was guilty of contributory negligence or had assumed the risk, as those terms have been defined in other instructions.” It is insisted that the instruction is erroneous and prejudicial to the rights of appellant, because it tells the jury that it was negligence for Baker to turn the steam on under the facts stated, or, if he had previously turned it on, it was negligence not to turn it off. It is claimed that there is no proof in the record that it was negligent to leave the steam on while attempting to roll .the flywheel off of center, or that it was not the duty of Baker more than of Wallace to turn the steam off or on. We cannot agree with counsel in this contention. Appellee had nothing whatever to do with turning the steam on or off. His whole duty in the premises was to. help roll the flywheel so as to get it off of center when told to do so by Baker. The undisputed evidence shows that Baker was running the machinery, and it was his duty to order the other employees to roll the flywheel so as to get it off of center, and that he did so. The testimony of the appellant showed that it was its duty to get the flywheel off of center. The testimony of Highsmith, the superintendent of the mill, as well as that of Baker, shows that there would have been no danger to appellee in helping to roll the flywheel if the engine had not been running. The only dispute about the matter at all was as to the amount of steam turned on. The witnesses for appellee testified that the steam was turned on full, while Highsmith and Baker testified that there was some steam turned on, hut that it was not turned on full. Now, in the very nature of things, it is manifest that it was dangerous to turn on the steam while the employees were engaged in rolling the wheel. They could not make it revolve rapidly, and, if there had been no steam on, appellee could have readily jumped off of the flywheel after they started it to rolling. The purpose of turning on the steam was to make the flywheel revolve rapidly, and it was manifestly dangerous to turn the steam on while the employees were engaged in rolling the wheel to get it off of center. Hence there was no error whatever in telling the jury that it was negligence on the part of appellant for Baker to turn on the steam, or, having previously turned it on, to neglect to turn it off while appellee was helping to roll the flywheel. There was some testimony to the effect that appellee could not have been required to help roll the wheel. . But the undisputed evidence shows that it.was a part of the duty of any of the employees who happened to be present to help roll the wheel when ordered to do so. Under these circumstances appellee was in the line of duty when he was hurt by the negligence of Baker in turning on the steam. In other words, appellee was engaged in helping to roll the wheel under the direction of Baker, and, while he was so engaged, Baker turned on the steam, thereby causing the revolving wheel to turn faster and injure appellee. According to the testimony of appellee, he did not turn on the steam, accidentally or otherwise. A..Ketchum, a witness for appellee, testified that he saw Baker turn on the steam. Another witness testified that Baker was standing at the throttle when Wallace was being carried around by the-rapidly revolving wheel. Still another witness testified that Baker. was at the throttle when they went to turn the wheel. Baker, denied turning on the. steam, but the court submitted to the jury the question whether or not he did so. The undisputed evidence shows that the steam was turned on by some one, and this caused the flywheel to revolve so rapidly that it -jerked, appellee and carried him around with it. The act of turning on the steam and thus causing the flywheel to revolve rapidly while the appellee.was in it was the proximate cause of his injury and constituted negligence on the part, of appellant. It is next insisted that counsel for appellee made a statement of matters not in the record, which were prejudicial to the rights of appellant and called for a reversal of the judgment. One of the attorneys for appellant, in his argument to the jury, said: “I wish you could know why this case is here in Mississippi County. Plaintiff lives at Lake City, Craighead County, and the defendant lives in that county. Why then is it here? You ought to know.” In response to this statement, counsel for appellee said: “Mr. Adams says he wishes you to know; why the case is here. I am willing that you should know. ít was brought to this county — Although I have no objection to its being here — it was brought in another county, and then brought to this county, and possibly on the' false affidavits of an insurance agent. ” Upon objection being made to the statement of appellee’s counsel, he withdrew it. The presiding judge was in an anté-room right next to the court when the above colloquy took place. He returned to the courtroom, and, when one of the counsel for appellant stated the substance of what had occurred, as above quoted, the court said thát the remarks of counsel for appellee were highly improper; and had'no place in the lawsuit. The jury was instructed not to consider the same. . Under these circumstances we do not think any prejudice could have resulted to appellant. • The attorney for appellee withdrew his remarks, and the presumption is that the jury were men of ordinary discretion and experience in the affairs of life; They were a part of the court engaged in trying cases, and we are of the opinion that the remarks ‘of the court would necessarily have more influence upon them than the remarks of counsel. This is especially so, when we consider 'that the remarks of counsel for appellee were to an extent invited by previous remarks by one of the attorneys of appellant, and that counsel' for appellee himself withdrew his ‘remarks from the jury. In support of our ruling on this point, we cite the following cases: Chess & Wymond Co. v. Wallis, 134 Ark. 136, 203 S. W. 274; Arkansas Central Rd. Co. v. Goad, 136 Ark. 467, 206 S. W. 901; Central Coal & Coke Co. v. Orwig, 150 Ark. 635, 235 S. W. 390; Arkansas Short Leaf Lbr. Co. v. Wilkinson, 154 Ark. 455, 243 S. W. 819; Southern Anthracite Coal Mining Co. v. Rice, 156 Ark. 94, 245 S. W. 805; Black Brothers Lumber Co. v. Person, 163 Ark. 40, 258 S. W. 976. It is next insisted that the verdict is excessive, both as to loss of earnirig capacity andas to pairi and: suffering. Appellee wasa-steady'worker arid.in good health’at the time he was injured.' He had beén at "work two days and three'-hours at thé timé 'he' wás injured. He was do'irig piece work,' arid was due $6.50 for his. work.. He volririWef ed to help repair the machinery in order that he might get to work again. He knew that he would not be paid anythirig-for-helping- to‘repair the machinery, or for helping1 to start- the flywheel rolling/' Hé did these things . in order that he might gét back to Work, and the jury might have' inferred from-'this that he was áú industrious , mari'and tháf his earning capacity would, increase. He. had "a life expectancy of practically twenty-one years. His "body was horribly bruised and mangled .by being-carried around in the rapidly revolving fly-wheel, and it is evident that he can never work any more. Under these circumstances it cannot be said as a matter of.law that the' sum of $13,883 is excessive compensation for his loss, of earning Capacity.. ‘The jury allowed him $8,708 for' paiibahd suffering. 'Appellee was in the hospital thirteen weeks, and' suffered excruciating pain. . When the. engine was started, he was in the flywheel, standing.on one spoke < and'fulling.down with his hands on,another spoke. ..Two ribs wéfé broken from, his breastbone and,,two other rib,s were‘torn from His backbone when the engine was started, •- thereby causing the flywheel to, revolve rapidly. _ Before.-.-, the accident he' was in' good health,,but cannot now. even,/ si-t up a day át a time! He has no strength whateyerin his left leg. His right leg was torn off, except hanging by a few-muscles. ' It was amputated/. ."His left leg was partly crushed, but has-a fairly good'union. "Three or, ; four inches <5f bone is'gone out! bf it.' He* has two or..three ! dislocated vertebrae, arid this has a.bad effect! He is not . able to work; arid never will be. It "gave him much pain to walk at the time of the trial. The undisputed evidence shows that he suffered great agony and must continue to suffer for the balance of his life. "When all these matters are considered, it, cannot be said that'the judgment should be reversed because, excessive damages' were awarded by the jury. . The court gave numerous instructions at the request of both parties, and it would seem that fewer instructions. might have presented the issues. We have examined the instructions, however, and are of the opinion that there is no conflict between them, and that they haye fully and fairly presented the matters at issue under the principles of law so often declared by this court. The instructions refused were either covered by the instructions given or are argumentative in character. We find no "reversible error in the record,' and the judgment will be affirmed.