Railways Ice Co. v. Howell

Hart, J., (after stating the facts). It is earnestly insisted by counsel for appellant that there is not sufficient evidence to warrant the verdict. (1) It is well settled that a master is bound to exercise ordinary care to furnish his servants a safe place in which to work, and to make reasonable inspection from time to time to see that such place is kept safe; the degree of care 'being tested by the circumstances surrounding the character of the employment and the particular facts of the case. Ozan Lumber Company v. Bryan, 90 Ark. 223. There is an exception to this rule in some instances where a servant is employed in tearing down a building since the work of removal is one in which each part of the structure in turn is rendered insecure. This every workman understands. In recognition of this principle, this court, in the case of Grayson-McLeod Lumber Company v. Carter, 76 Ark. 69, held that the rule that a master is required to furnish his servant a safe place in which to work is not applicable where the servant is employed to erect or tear down a structure as a servant assumes the hazards of such employment. In that case the servant was engaged in tearing down a bridge. His place of work continually changed, and the work of tearing down the bridge sometimes rendered his place of work more insecure. Speaking with reference to the master’s duties to him, the court said: “There was no duty to furnish him a safe place in which to work, since his employment made it his duty to tear down and to change and destroy his places for work, and to make them safe or unsafe, as his work rendered them; and was such as to place it out of the power of his employer to perform such duty.” According to the testimony adduced in favor of appellee, this is not a ease where the servant was engaged in dismantling .a 'building, and the unsaf e conditions from which the injury resulted arose from or were incidental to the work thus undertaken. The testimony adduced in favor of appellee tends to show that his place of work was not rendered insecure by any act of his. The master owed him the duty to exercise ordinary care to provide him a safe place to work .at the .start. He was directed to go to the top of the tower for the purpose of taking down the condenser pipes. There was a platform there about two feet wide with a banister around it upon which it was necessary for him to stand, while engaged in performing his work. The banister had a sun crack in it which rendered it unsafe. This fact was known to the foreman of appellant, and was unknown to decedent, or, at least, the jury might legitimately have drawn that inference from the testimony. The brother of the decedent testified that he was the foreman of the plant and that he knew of the defective condition of the banisters. He said that he ordered Ms brother to go up there to work, but did not notify him of the defect in the banister because he did not think of it at the time. It is true the decedent had worked for the company which sold the plant to appellant, but he worked in the Mght time, and according to the testimony of his brother, his duties did not require him to go up on the platform in question. . The .only eye-witness to the accident, the man who went up to work with Mm, says that he had not been up there more than twenty minutes when the decedent fell from the platform. He also stated 'that he himself did not notice the suncrack in the banister when he went up there to work, or before the injury occurred. He stated that .at •the time the injury occurred, they were engaged in pushing off over the platform a condenser pipe which weighed about fifty pounds, and that decedent, in pushing it off, either stepped or leaned against the banister, and that on account of the defect in the banister, it broke and precipitated him to the ground, thereby causing thé injuries which resulted in his death. (2) Under these circumstances, we think that the question of the negligence of the appellant, the assumption of risk and the contributory negligence of the decedent were questions of fact to be submitted to the jury for its determination. ' In the case of St. Louis, I. M. & S. Ry. Co. v. Corman, 92 Ark. 102, the court held that a servant is entitled to recover for the negligence of the master, even though the negligence of a fellow-servant concurred therein if the injury would not have occurred but for the master’s negligence. It is next insisted by counsel for appellant that the court erred in modifying instruction No. 11, asked by it. That instruction is as follows: “You are instructed that the law presumed that the master did his duty, and did not know of any defects, if any existed, in the guide rail around the platform. It is incumbent upon the plaintiff to show by a preponderance of the evidence that the death of Howell was caused solely or was contributed to by reason of a defect in the guide rail, and that this defect in such guide rail was known to the defendant, or that such defect could have been known to the defendant by the exercise of ordinary care, and that such defect was not known to Howell.” The modification consisted in adding the words, “or was contributed to,” after the words, “was caused solely.” The instruction, as asked 'by appellant, was erroneous. It made the liability of appellant to appellee depend upon whether the death of Howell was caused solely by reason of the defect in the guide rail or banister. In the case of Chicago Mill & Lbr. Co. v. Cooper, 90 Ark. 326, the court held that where several proximate causes contributed to a casualty, and each is an efficient cause without which the casualty would not have happened, it may be attributed to all of the causes; but it can not be attributed to a cause without whose co-operation the accident would not have happened. (3) As we have already seen, the testimony on'the part of appellee tended to show that the guide rail or banister was in a defective condition at the time Howell went up there to work, and that he went there to work at the direction of the foreman of appellant without any warning that the defective condition of the banister existed. It will be remembered that the defective condition of the banister had existed for some time prior to the happening of the accident, and that this fact was known to the foreman of appellant, but was not known to the deceased, Howell. Under this state of facts, the jury might have found that the proximate cause of the injury was the defective condition of the guide rail, together ■ with the concurring negligence of the foreman in failing to inform Howell of its defective condition. It is evident that the court intended to remedy this defect in the instruction by the use of the words, “or was contribued to,” immediately following the words, “was caused solely by.” We think it manifest that the court, by the use of the added words, intended to instruct the jury that if it found that a defective condition of the guide rail was one of the causes which, concurring with another, produced the injury, the appellant would be liable in damages to appellee. See Fourche River Valley & I. T. Ry. Co. v. Tippett, 101 Ark. 376. It is next insisted that the court erred in giving instruction No. 7, which is as follows: “If you find from a preponderance of the evidence, that Freeman appointed T. Howell as foreman, he was for the purpose of this case the foreman, whether he had authority to appoint Howell foreman or not, unless you further find that the deceased knew or had reason to believe that Freeman had no such .authority, and the burden of establishing that T. Howell was the foreman, devolved upon plaintiff.” (4) We do not think there was -any error in giving this instruction. Under the facts in this case it was not necessary that the court should use the words “whether he had authority to appoint Howell foreman or not, ’ ’ for the undisputed evidence shows that Freeman was the local manager of appellant, and had the sole and exclusive charge of dismantling the ice plant. As such, he had authority to appoint T. Howell as foreman, and the only disputed issue of fact was as to whether or not he did appoint Howell as such foreman. T. Howell affirmed that Freeman had appointed him foreman and Freeman denied that he did so. This question of fact was properly submitted to the jury in this and other instructions given by the court, and no prejudice could have resulted to the ■appellant from the use of the words which we have just quoted, because under the law if Freeman had sole charge of tearing down the ice plant .and full authority to employ servants necessary for that purpose, with authority to discharge them .at will, this .authority carried with it the power to appoint T. Howell as foreman; iat least in the absence of notice to Howell, that he did not have such authority. (5) Next it is insisted by counsel for appellant that the court erred in other instructions given to the jury at the request of appellee, or of its own motion. We do not deem it necessary to set out or discuss these assignments of error. The record shows that appellant did not make them grounds of its motion for a new trial and, not having done so, under the settled rules of the court, it will be deemed to have waived them. This is so well settled by the repeated and uniform decisions of this court that it is not necessary to cite any cases in support of if. Finally it is insisted by counsel for appellant that the verdict is excessive, .and in this claim we think they are correct. The decedent was rendered unconscious by his fall. He lived twelve hours thereafter, but never regained consciousness. The only element of damages claimed was the amount of contribution to be made by him to his family. The record shows that he was twenty-six years of age at the time of the accident, and that his wife was about the same age, and that he had three little children. (6) He earned a salary of $75 per month, was a good engineer and was of sober .and industrious habits. It it not shown that he possessed any means outside of Ms $75 per month earned by him at the time of his accident. In the very nature of things he could not have contributed the whole amount to his family as contended by counsel for appellees, but we think the jury might have fairly inferred from the testimony that he did contribute three-fourths of 'this amount to the support of Ms family. His life expectancy was thirty-eight years, as shown by the mortality tables and the present value of an annuity at his age would be worth something like $8,000. He was an active and energetic young man. His chances of earning a greater salary in the near future were good. He was killed three years before the trial, and under the rule in St. Louis, I. M. & S. Ry. Co. v. Cleere, 76 Ark. 377, the • jury might have allowed interest at 6 per cent on the estimated damages. When we consider these facts it is fair to say that $4,000 additional might have been awarded by the jury. The utmost amount, then, which the jury should have awarded would have 'been the sum ef $12,000. Therefore, the judgment will be remitted down to $12,000, and for that amount it will be affirmed.