Harris Lumber Co. v. Morris

McCulloch, J., (after stating the facts.) 1. The court, over the objection of defendant, gave the following instruction, which is assigned as error, towit: “No. 9. Damages for torts are not weighed in golden scales; and if the jury find from the evidence in this case that the defendant was grossly negligent in assigning plaintiff to work where the danger was latent and known, or that the condition of the machinery, by the exercise of ordinary prudence or care, should have been known by the defendant, then they are war7 ranted in assessing punitive damages in this case.” This instruction was improper, and should not have been given. The evidence does not, in the first place, disclose any elements calling for the infliction of punitive damages. In the next place, it was error to say that gross negligence alone is sufficient, without any element of wilfulness, wantonness or conscious indifference to consequences from which malice may be inferred, to justify the infliction of punitive damages. Arkansas & La. Ry. Co. v. Stroude, 77 Ark. 109; Railway v. Hall, 53 Ark. 7. It was also erroneous, a fortiori, in declaring that the defendant would be liable for punitive damages if it was guilty of negligence in assigning plaintiff to work in a place which by the exercise of ordinary care it could have known was dangerous. 2. Lr.ror of the court in giving the following instruction is assigned: “No. 11. The court charges the jury that if they believe from a preponderance of the evidence that the plaintiff was injured by reason of the set screw, and that the same was so set or arranged that it increased the risks or -dangers of the employee, plaintiff here, or that the lever attached to and connected with the ‘idler’ was so defective that it could not be properly or efficiently used in stopping said saws, when in motion, and that these defects were latent, defendant is liable.” The effect of this declaration was to make the defendant the absolute insurer of plaintiff’s safety while performing service. It is true, as we said in Southern Cotton Oil Co. v. Spotts, 77 Ark. 458, the master is bound to know of the structural parts of the machinery furnished tó thq servant, yet this instruction makes the master absolutely liable, regardless of the question of his negligence or care in selecting the machinery, because the arrangement of the set screw increased the danger. This court has many times said that the master is not the insurer of the servant’s safety, but is only held to ordinary care in providing a safe place and safe appliances in which and with which the servant is to work. L. R. & F. S. Ry. Co. v. Duffey, 35 Ark. 602; St. Louis, I. M. & So. Ry. Co. v. Harper, 44 Ark. 524; Little Rock, M. R. & T. R. Co. v. Leverett, 48 Ark. 333; Railway Co. v. Jagerman, 59 Ark. 98; Park Hotel Co. v. Lockhart, 59 Ark. 465. This instruction was erroneous in submitting to the jury the question concerning the alleged defect in thg lever attached to the machine. There was no evidence that this defect contributed to the injury. There was no evidence that any attempt was made to control the machine with the lever so as to avoid the injury, or that it, the injury, could have been avoided if the lever had been in perfect order. The plaintiff’s own testimony shows that when the set screw caught his jumper his hand was thrown upon the saw so quick that he could not get away and could not have stopped the machine by Use of the lever. Other errors of the court are assigned; but as those already .indicated herein call for reversal of the case, it is unnecessary to discuss the other assignments, further than to say that the rulings of the court concerning the binding effect of the release executed by the plaintiff, and the necessity for return of the consideration paid therefor, fall within the decision of this court in St. Louis. I. M. & So. Ry. Co. v. Brown, 73 Ark. 42. Reversed and remanded for a new trial. Hire, C. J., disqualified and not participating.