Holmes v. Bluff City Lumber Co.

Wood, J., (after stating the facts). 1. The court did not err in refusing to allow witnesses to testify “that the saw ¡by which plaintiff was injured ought, in the exercise of ordinary care on defendant’s part, to have been covered with a hood.” Witnesses could not give their conclusion as to what appellee should or should not have done with reference to providing a hood for the resaw. The failure to exercise ordinary care to provide a safe place for employees to work and safe machinery for them to work with would be negligence. It was for the jury, not the witnesses, to determine whether or not appellee was negligent. The statement of facts was for the witnesses, the conclusion to be drawn from the facts was for the jury. The court permitted testimony showing that the resaw was without a hood, and that the machine was supposed to be, but was not, covered with a hood. 2. The court' did not err in refusing the prayers of appellant for instructions. The principles of law intended to be announced by these prayers were more correctly stated and were fully covered by the instructions of the court set out in the statement and numbered A3, A7 and 1 and 2. Prayer number 1 of appellant was defective because it told the jury that “it was the duty of the defendant to furnish plaintiff a reasonably safe place to work,” and that if “plaintiff while engaged at work for defendant was not given a reasonably safe place in which to perform his work,” etc., defendant would be liable. The instruction in this form exacted of appellee the duty of absolutely furnishing a reasonably safe place, when the law only required that appellee should exercise ordinary care to make the place safe. Southwestern Tel. Co. v. Woughter, 56 Ark. 206; Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 237; Arkansas Smokeless Coal Co. v. Pippins, 92 Ark. 138; St. Louis, I. M. & S. Ry. Co. v. Reed, 92 Ark. 350. The court did not err in refusing an incorrect instruction. Smith v. Weatherford, 92 Ark. 10. Parties must present correct prayers, else they cannot complain of the ruling of the court in refusing them. Allison v. State, 74 Ark. 444. See Western Union Tel. Co. v. Ford, 77 Ark. 531; Horton v. Jackson, 87 Ark. 530. Furthermore, upon the undisputed evidence, the court was warranted in confining the issues of negligence to the question of whether or not appellee failed to give Holmes proper warning. The uncontroverted evidence shows that the place and the machinery were perfectly safe, provided the employees, in the performance of their duties, did not come in contact with the resaw, and it was not necessary for them to do so in order to properly do their work. Therefore the only question of negligence was whether or not appellee had given Holmes such warning of the dangers surrounding him and such instructions as to his work as would be sufficient, according to the judgment of men of ordinary -minds, understanding and prudence, to enable him to appreciate the danger and the necessity for the exercise of ordinary care for his own safety in the performance of his duties. Learned counsel for appellant contend that in order for the court to have properly submitted this question it should have granted appellant’s prayer number 2, as well as number 1. They rely upon St. Louis Stave & Lumber Co. v. Sawyer, 90 Ark. 473, and Arkansas Midland Ry. Co. v. Worden, 90 Ark. 407, as authority for their contention. But in these cases the evidence disclosed a failure upon the paid of the employer to warn their inexperienced employees of the dangers incident to their employment. While there were instructions in the case of St. Louis Stave & Lbr. Co. v. Sawyer, supra, as to how the work should be done and as to what the servant should not do, there was no warning as to the danger and consequent injury that would result if the instructions were not followed. But in the case at bar the servant was specifically warned of the danger as follows : “Don’t run against any of the saws or you will get cut.” The court in the instructions given correctly submitted the question of whether or not appellee was negligent in failing to give sufficient warning to young Holmes, and followed the law as it has been often declared by this court in such cases. Fones v. Phillips, 39 Ark. 38; Southwestern Telephone Co. v. Woughter, 56 Ark. 211; Davis v. Ry. Co., 53 Ark. 128; Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232, 238; King-Ryder Lumber Co. v. Cochran, 71 Ark. 56; Ford v. Bodcaw Lbr. Co., 73 Ark. 55; Arkadelphia Lbr. Co. v. Henderson, 84 Ark. 382; St. Louis Stave & Lbr. Co. v. Sawyer, 90 Ark. 473; Arkansas Midland Ry. Co. v. Worden, 94 Ark. 407. See also Worden Vehicle Co. v. Siggs, 91 Ark. 106. It was a question for the jury; and, as we find no error in any of the rulings of the trial court, the judgment is affirmed.