River, Rail & Harbor Construction Co. v. Goodwin

Hart, J., (after stating the facts). Appellee testified that Mr. Taylor was a servant engaged in the making of hoops, and was standing about ten for twelve feet away when he was injured. Appellee said that Taylor came to him at once when he was injured; and, when asked, “What did he say?” answered, “He said if he had been doing his duty and making them like he should have made them, it wouldn’t have happened, and he wouldn’t have had it happened for a hundred dollars, and I was in so much pain I didn’t pay any attention.” This testimony was permitted to go to the jury over the objections of the appellant, and the action of the court in this, respect is now assigned as error. We think the assignment is well taken. Counsel for appellee seek to uphold the ruling of the court by the decision in the case of Beal-Doyle Dry Goods Co. v. Carr, 85 Ark. 479. There the excited declarations of a child to his father while plaintiff was lying injured at the bottom of the elevator shaft, and before he had been discovered, that a man pushed the elevator door open and walked in, were held to be admissible on the issue of whether the door was left open or not. The remark of Taylor was not competent. It did not illustrate or explain how or what caused the accident. His statement was not so connected with the transaction as to characterize and be a part of it. What Taylor said could give character to nothing that happened. It could neither qualify nor explain it. It was a mere narrative of a past occurrence depending for its force and effect solely on the credit of Taylor unconnected with the act done and receiving no credit or significance from the accompanying circumstances. It was not therefore competent as original evidence in the matter of res gestae. Fort Smith Oil Co. v. Slover, 58 Ark. 168; Little Rock Traction & Electric Co. v. Nelson, 66 Ark. 494; Stecher Cooperage Works v. Steadman, 78 Ark. 381; St. Louis, I. M. & S. Ry. Co. v. Pape, 100 Ark. 269; Caldwell v. Nichol, 97 Ark. 422. The declaration was not made by an officer of appellant company, having the right to speak for it and bind it by declarations of that kind. It follows from the authorities that we have already cited that the declaration was improperly admitted, and was prejudicial to the appellant. In Jones on Evidence, § 357, the rule is stated as follows: “The declaration of an employee or officer as to who was responsible for an accident, or as to the manner in which it happened, when made at the time of the accident or soon after, have been held incompetent, as against the company, on the ground that his employment did not carry with it authority to make declarations or admissions at a subsequent time as to the manner in which he had performed his duty; and that his declaration did not accompany the act from which the injuries arose and was not explanatory of anything in which he was then engaged, but that it was a mere narrative of a past occurrence.” It is next contended by counsel for appellant that the evidence did not warrant the verdict. In the case of Arkansas Midland Ry. Co. v. Worden, 90 Ark. 407, the court said: “When an employee takes service with his employer, he impliedly agrees to assume all the obvious risks of the business, including the risks of injury from the kind of machinery then openly used, as well 'as the method of operating the business then openly observed.. * * * This is the rule which applies to an employee of mature years and experience in the particular work or business, for there is no duty on the part of the master to warn an experienced servant of obvious dangers, as they are among the ordinary incidents of the service, and he is bound to take notice of these, and must be presumed to have realized and appreciated such dangers * * * But the rule is different as to a servant who, by reason of youth or inexperience in the particular work, does not fully realize and appreciate the danger. In that case it is the duty of the master to give proper instructions and to warn the inexperienced servant of patent as well as latent dangers. * * * And, before the inexperienced servant can be presumed to have realized the danger and assumed the risk, it must be shown that he was instructed and warned of it.” Appellee was forty-five years of age, and was in possession of all of bis faculties. He had lived in the country all his life, and was a farmer. The danger from a pole breaking as it was being pulled around in order to fashion it into a hoop was patent and obvious to any one. It may also be said that the danger arising from one end of the pole slipping out from between the stobs while the pole was being bent was an obvious 'and patent danger. The rule is that the master is not required to explain patent dangers which are ordinarily incident to the services, and which it may be reasonably expected under all the circumstances the servant can see and appreciate. But we do noi think that the danger arising from one of the stobs pulling up was an obvious and patent one under the evidence detailed by appellee. He says that he had never seen any work of that kind done, and was wholly without experience as to the method of doing it; that he informed appellant of his ignorance and inexperience before he commenced to work for it. That appellant put him to work carrying poles and placing them in front of and a little to one side of the hoops. The stob in question which pulled up had only been driven down that afternoon and was pulled up while the first hoop was being made. Under these circumstances, the jury might have found that it was the duty of appellant to have informed appellee of the way he should travel to place the poles in the position where he was directed to put them, and to have instructed and to have cautioned him sufficiently to have enabled him to comprehend the danger of the stob pulling out. If the circumstances were such that the appellant owed it as the duty to appellee to instruct him, and it failed to do so, and appellee was injured on account of its failure to do so, appellant was liable in damages for the injury. On the other hand, a witness for appellant testifies that on one trip in carrying a pole appellee walked over the hoop, and that he was warned of the danger of so doing. Whether appellee knew or ought to have known what caution was necessary for him to use while walking along the path in the performance of his work of carrying the poles in order to avoid the injury that he received, or appreciated the danger of the failure to use such caution, or had received the necessary instruction and warning before the injury, was properly a question for the jury. Other assignments of error are pressed upon as for a reversal, but the views we have already expressed render it unnecessary to discuss them. The assignment in regard to the arguments of appellee’s counsel before the jury is not likely to arise on a retrial of the case, and the principles of law that we have already announced will be a sufficient guide for the court in instructing the jury. For the error in admitting the declaration of Taylor, the judgment will be reversed, and the cause remanded for a new trial.