Arkadelphia Lumber Co. v. Henderson

Hiix, C. J., (after stating the facts.) 1. The first contention is that the court erred in not giving the 7th instruction asked by the Lumber Company, which was a peremptory instruction to find for the defendant. The evidence adduced on behalf of the plaintiff showed that the injury was due to either a defect in the machine or to Henderson’s failure to properly connect the’ disconnected chain to continue the machine in operation; and in either event the Lumber Company would be liable if it failed to warn him. of a defect in the machine or as to the dangers connected with the operation thereof. What was said in Bodcaw Lumber Co. v. Ford, 82 Ark. 555, is equally applicable to the plaintiff’s evidence here: “Being an inexperienced youth, uninformed as to the proper method of operating the machine, he was entitled to instruction as to the safe method of operating it and warning of the danger ordinarily incident to the work or by reason of any defect in the machine. The jury were therefore warranted in finding that, under the circumstances, it was the duty of the defendant either to instruct him or to warn him not to attempt to feed the machine, and that it did neither of these things, but sent him to work there without proper warning or instructions.” 2. It is wholly immaterial whether the danger was patent or latent. In Ford v. Bodcaw Lumber Co., 73 Ark. 49, the court said: “If the danger of the employment is patent, and the servant, by reason of his youth and inexperience, does not know or appreciate the danger incident to the service he is employed to do, it would be the duty of the master to warn him of it and instruct him to avoid it, so far as it can be, before exposing him to it. (Citing authorities.) In all cases where there is a duty to warn a servant, it would be a breach of such duty to expose him to such dangers without giving him such instructions and caution as would, in the judgment of men of ordinary minds, understanding and prudence, be sufficient to enable him to appreciate the dangers and the necessity for the exercise of due care and precaution, and to do the work safely, so far as it can be done with the proper care on his part. For a breach of this duty the master is liable for the damages resulting therefrom. (Citing authorities.) Of course, there is no duty to instruct when the master does not and ought not to know or take notice of the youth or inexperience of the servant.” It was said in Davis v. Railway, 53 Ark. 117: “A knowledge of facts which involve a latent danger does not imply a knowledge of the danger itself.” These principles were applied in King-Ryder Lumber Co. v. Cochran, 71 Ark. 56, where a youth of eighteen years, of fair and ordinary intelligence but inexperienced in his work, was put to work operating an edger in a saw mill, and was injured thereby, and are equalfy applicable to the, case at bar. 3. It is insisted that Henderson was not employed to work about the dangerous machine, as he was employed as a tailer and not as a feeder; and, had he continued to work in the capacity in which he was employed, the injury would not have occurred; and that the master is not liable for his undertaking to do this work at the instance of the feeder, who, it is contended, was a fellow servant. The plaintiff has evidence showing that it was customary for the tailer or foreman to take the place of the feeder when the feeder was temporarily absent from his machine; and, further, that "Henderson as tailer was called upon to attend to the machine pursuant to this custom, and this was done once in the presence of Duvall, the foreman. If this evidence be true, then his employment as tailer included the employment as feeder during the temporary absences of the feeder from the machine. Duvall denies seeing Henderson at work feeding the bolting machine; but he does not deny knowledge of the custom of the tailer being called to take the feeder’s place. This matter was sent to the jury in the 6th and 7th instructions, and there is testimony to sustain the verdict uphold-' ing the theory of plaintiff therein outlined. 4. It is said that the evidence falls short of -establishing such custom or usage as would make it binding upon the parties. The principle governing particular customs or trade usages is as follows: “The elements of antiquity need not be shown in the case of a usage or custom of trades. All that is required is to show that it is established, that is, that it has existed a sufficient length of time to have become generally known.” “Particular usages and customs of trade or -business must be known by the party to be affected by them, or they will not be binding, unless they are so notorious, universal and well established that his knowledge of them will be conclusively presumed.” 12 Cyc. 1034, 1041; Ward Furniture Mfg. Co. v. Isbell, 81 Ark. 549; Bodcaw Lumber Co. v. Ford, 82 Ark. 555; McCarthy v. McArthur, 69 Ark. 313. These principles were reflected in the sixth and seventh instructions, and the testimony is sufficient to sustain a verdict finding such custom. 5. It is urged that the custom should not have been introduced into evidence without being pleaded, and the sixth refused instruction presented appellant’s contention in that regard. The court refused it, and such refusal is alleged to be error. The complaint alleged that Henderson was in the employ of defendant, and ordered -and directed to work at and about the bolting machine, and was injured while feeding said machine; and charged negligence in the use of defective machinery and in want of instruction. The answer denied the negligence alleged and set forth that Plenderson was not employed as a feeder but as a tailer, which position would not have brought him in contact with the machine, and that he took the feeder’s place without authority from the company. The Code provides that the answer may controvert any allegation of the complaint and set forth any new matter constituting a defense. This new matter is not to be answered unless it constitutes a counterclaim or setoff, when there shall be a reply thereto. All other defensive matter is considered controverted. Kirby’s Digest, § § 6098, 6108, 6137. The custom came properly into the case to meet the defensive matter alleged in the answer, which s.tood controverted by law, and an issue of fact thereby raised to be settled by the jury, upon evidence to be adduced sustaining or refuting the allegation. Finding no error in the case, the judgment is affirmed.