Stout Lumber Co. v. Wray

Hart, J., (after stating the ¡facts). It is first earnestly insisted by counsel for appellant that the court erred in not directing a verdict in its favor. Under the act of March 8,1907, all corporations are made liable for injuries to their servants resulting from the negligence of other servants, regardless of the grade of service. Soard v. Western Anthracite Coal & Mining Co., 92 Ark. 502; Aluminum Company of North America v. Ramsey; 89 Ark. 522; St. Louis Southwestern Ry. Co. v. Burdg, 93 Ark. 88. It is well settled that the rule which imposes upon the master the duty to exercise ordinary care to provide his servant with a reasonably safe place in which to work requires the master to make réasonable inspection to see that the place of work and appliances are safe. St. Louis, I. M. & S. R. Co. v. Holmes, 88 Ark. 181. This is conceded to be the law by counsel for appellant, but they contend that under the facts as disclosed by the record the master delegated to appellee the duty to inspect its machinery and appliances and to make them 'safe or to report their unsafe condition to the foreman and that, therefore, the case falls within the principles of law decided in the ease-of Southern Anthracite Coal Company v. Bowen, 93 Ark. 140, and other cases of like character. Under the rule contended for, if it was the duty of appellee to have inspected the appliance at which he was working when he received his injuries before he went to work there, then he ought not to recover; for in that event the injury was the result of his own negligence because he admits that he did not inspect the appliance for defects at the time he went to work there. We do not think the evidence as disclosed by the record bears out their contention. It is true that a part of the duties of appellee was to assist in inspecting the machinery and appliances of appellant. The mill plant of appellee had •two floors and appellant was injured while working’ on .the upper floor. The testimony shows that it was the custom of the foreman to have an inspection made of the machinery on the floor on which appellee was hurt, every day at the noon hour. The machinery was then idle and the foreman, together with appellee and two others, at that hour made an inspection of all the machinery and appliances used by appellant in operating its mill. Appellee states that such inspection was made at the noon hour on the day preceding the accident and that the plank which was nailed to the table on which ran the moving’ rollers was in its place and that the cog wheels which ran the moving rollers were not exposed. He says that during the rest of the day his duties kept him on the first floor of the mill and that it was not necessary for him to go on the second floor unless he was called there by signal or directed by the foreman to go there for the purpose of making repairs or doing such other work as he was required to perform. He says that he did not go on the second floor during the afternoon after the inspection just referred to had been made and that he went up there to work early in the morning at the command of his foreman. That the slabs were piled around the table in such a way as to conceal the fact that the plank had been removed and left the cog wheel exposed and that he did not notice this fact until after he was injured. Other evidence shows that the plank was pried off about 5 o’clock in the afternoon before and that Mullins, whose duty it was to repair any defects that he might discover in the machinery or to report them to the foreman, was present and knew that the plank had been pulled off. The evidence shows that it was dangerous to work at the table where the live rollers were without the cog wheels and gearing being guarded and that they were kept from being exposed by a plank four feet long, one inch thick and eight inches wide. Therefore, the jury might reasonably infer that the act of Mullins in not restoring the plank to its position or in reporting the fact of its being off to the foreman, was an act'of negligence which would render appellant liable for any injuries caused thereby. Appellee according to his testimony was acting as a substitute for another servant at the time he was injured and was not acting in his capacity of inspector. He said that he was not required to inspect the appliances before using them when he took the place of another servant. He said that he went up there hurriedly that morning and began to place the accumulated slabs on the live rollers in order that they might be cleared out of the way so it would not become necessary to stop the machinery. That the slabs were so piled around the table that they concealed the fact that the plank had been removed and left the cog wheels exposed. Hnder these circumstances, we think that the contributory negligence of appellee was a question for the jury. Counsel for appellant next insist that the court erred in giving the following instruction: “In this case, if the injury was the result of any risk or hazard ordinarily or usually incident to the'plaintiff’s employment at the mill, he assumed that risk, and can not recover; but he does not assume the risk created at' the time of the injury by the negligence of the defendant, its agents or servants, of which he did not know; and if his injury was the result of said' negligence of the agents or servants of the defendant, then he did not assume such risk. ’ ’ They contend that the instruction ignores the contention of appellant, as it was appellee’s duty to discover and remedy any defect that existed in the appliances about appellant’s sawmill before he began to work around the same. We do not think that it was proved that such was his duty. As we have already seen, appellee stated that he was required only to inspect the machinery and appliances on the floor on which he was hurt at stated intervals, and testified in effect that when he was substituted for another servant he was not required to inspect the machinery or appliances before going to work at them. It is true the foreman testified that appellant’s duty carried him all over the mill plant and that it was his duty, if he knew of any defect in the machinery or appliances, to repair it himself or to report the fact to the foreman. His testimony, however, does not go to the extent of showing that it was the duty of appellant to make an inspection of the machinery and appliances before he went to work at them when he was substituted for another servant. The undisputed testimony shows that the inspection of the machinery was made at regular and stated intervals and at other times appellee was employed in the work of making repairs and performing such other duties as were assigned to him by the foreman. The fact that it was his duty to repair any defect that he might discover in the course of performing his duties does not show that he would be required to inspect machinery before going to work at it as a substitute for another workman. In this view of the case it does not make any difference whether he went to work at the place where he was injured by the direction of the foreman or in the discharge of his usual and ordinary duties. We think that the undisputed testimony shows that it was not his duty to have made an inspection of the machinery where he was injured before he went to work at it in place of another servant, and that there was no error in giving the instruction. Other assignments of error in regard to instructions given and those refused are raised by appellant’s counsel in their brief and argument. We have not overlooked them, but think they are sufficiently covered by the principles of law which we have announced. We have considered the instructions given and those refused and think that the issues raised by the pleadings and the evidence were fairly covered by the instructions given, and the judgment will be affirmed.