Chess & Wymond Co. v. Wallis

SMITH, J. On May 27, 1914, while appellee was engaged in cutting stave bolts for the appellant company, he was injured by a limb falling from a tree which ■struck him on the head. He sustained a very serious injury, and brought this suit through his. father as next friend to recover damages to compensate the injury. On appellee’s behalf the testimony was to the effect that he was directed by his foreman, a man named Norman, to ;saw a log lying under the hanging limb, when appellee called attention to the limb, but was assured by Norman that there was no danger of the limb falling. Appellee commenced the task to which he was assigned and while so employed the limb fell upon him. Norman denied having seen the limb or having given any assurance as to the absence of danger. Appellee was nearly grown at the time of his injury and had had several years’ experience working in timber, notwithstanding his youth, but he testified that he relied upon the assurance of Norman that the limb wPuld not fall, and that it was only because of this assurance that he commenced working under the limb. (1) Over appellant’s objection the court gave the following instruction: “1. If the defendant, by its authorized agent, ordered plaintiff into a place of danger, to aid in cutting up a tree, and plaintiff by reason of youth and inexperience did not know of and appreciate the danger of the situation and defendant knew this, or ought in the exercise of ordinary care on its part to have known it, then it was the defendant’s duty to warn him of this danger so that, as far as might be by proper care on. its part, plaintiff could perform his duty in safety to himself; if the defendant failed in this respect, and plaintiff, while exercising due care for his own safety, by such.failure, suffered the injuries sued for, then plaintiff should recover in this action.” To the giving of this instruction appellant at the time objected generally, and further objected specifically for the reason that under the law and the evidence as testified to by appellee himself the company did not owe to him any duty of warning as to his own safety because his experience in such employment showed there,was no necessity for warning him. In passing upon the objection made to this instruction it is proper to say that the court gave at appellant’s request a number of instructions declaring the law as contended for by it; in fact, the court gave all the instructions requested by appellant. And while it is true that appellee was not an inexperienced timber man, he was still a young man, .and we think the record presents a question of fact which should have been submitted to the jury, and that is, whether appellee had the right to. rely on Norman’s assurance of the safety of the place to which he was assigned to work. The instruction is not happily framed to present'the exact issue, in the case, but we think it was not erroneous when read in the light of and in connection with the other instructions. No objection was made to the instruction other than the one just indicated, therefore no other will be considered now. The warning of which the instruction speaks may not have enabled appellee to perform his work any more safely, but appellee says the assurance of safety induced him to take the place assigned to him. (2) It is argued that the danger was open and obvious and that Norman could not have had any more knowledge of the danger than appellee himself had, for according to appellee’s testimony the presence of the suspended limb was known alike to both himself and Norman. But it is just here that we think the jury question arises. The master is presumed to know the hazards of the employment and the servant has the right to rely on the assurance of safety, unless the danger is so open and obvious that its existence is both known to and appreciated by the servant. The rule is stated in 4 Labatt on Master and Servant (2 ed.), page 3965, as follows: “But it has been held that the assurance of safety given by the master may be of such a character as to fake away all question of assumption of risk even if the risk is known to the servant. The same effect is reached in a number of cases which hold that the servant may recover if he is injured while relying upon an assurance of safety unless the danger was so great and imminent that a reasonably prudent man would not have incurred it.” We can not say that the jury did not have the right to take into account appellee’s age and experience ■ as contrasted with that of his foreman .and to find therefrom that appellee had the right to rely upon the assurance given and that he was not guilty of contributory negligence and did not assume the risk. Exceptions were saved to two portions of the argument of counsel for appellee before the jury. In his closing argument counsel made the following statement: (3) “Gentlemen of the jury, my client, Cleat Wallis, is a very poor man, and I have been having to pay out costs in this case myself, and I have spent at least $300 of my own money in prosecuting this suit.” It is recited in the bill of exceptions that this state'ment was made in response to certain statements of counsel for appellant; but the objection made to the argument was sustained, and the court admonished the jury to disregard it. The statement of counsel was, of course, an improper one, but we think under the circumstances that it was not so prejudicial as not to have been cured by the admonition of the court concerning it. (4) Again in his argument counsel for appellee stated: “Gentlemen of the jury, the defendant, Chess & Wymond Company, is a large corporation and worth lots of money, and if you are to give us a judgment they would not pay it off if it were only ten cents, but would appeal to the Supreme Court of the State and keep it in court as long as possible.” Objection was also made to this argument, and the court was requested to exclude it and admonish the jury to disregard it. But the court declined to rebuke counsel or to exclude the argument from the jury. It is apparent that this argument, too, was an improper one, but the majority of the court are of the opinion that its only effect was to urge the jury to return a larger verdict than would otherwise have been done and that it was not an argument calculated to induce the jury to make a finding of liability which would not otherwise have been made, and that, inasmuch as no complaint has been made or can be made against the verdict as having been returned for an excessive amount, it therefore affirmalively appears that no prejudice resulted from the argument. St. L., I. M. & S. Ry. Co. v. Brown, 100 Ark. 107. (5) It is finally insisted that the verdict in the case was arrived at by lot. And, as tending to support that contention, the testimony of a juror was heard from which it appears that the verdict was not arrived at by lot, but was a quotient verdict, which had been arrived at by .adding together the amounts for which the different jurors thought the verdict should be and of dividing that sum by twelve. In the case of Speer v. State, 130 Ark. 457, we expressly held that a verdict arrived at in this manner was a quotient verdict and not one determined by lot, and that such a verdict could not, therefore, be impeached by the jury. It is true the Speer case, supra, was a criminal case, while the instant case is a civil case; but the right of a juror thus to impeach his verdict was raised in the case of Ward v. Blackwood, 48 Ark. 408, which was also a civil case. There the affidavit of the juror would have shown that the verdict was arrived .at by lot; but the court held the testimony of the juror showing that fact to be inadmissible for that purpose,- and in doing so Judge Battle,, speaking for the court, said: “In Pleasants v. Heard, 15 Ark. 407, the affidavit of Strawn, one of the jurors, was filed to show that the jury agreed that each member thereof should write down the amount that he was in favor of, and that these several amounts should be added up and their sum divided by twelve, the number of the jurors, and that the quotient should be taken and written as the amount of their verdict, which was accordingly done, and the verdict so arrived at was returned into court as the verdict of the jury. Chief Justice English, in delivering the opinion of the court, said: ‘Though there are some conflicting eases, we think it may be safely decided, upon authority, and for many good reasons, that the affidavit of the juror, Strawn, was not admissible in this case to impeach the verdict rendered by him for the cause stated in the affidavit.’ Thompson & Merriam on Jury Trials, § 414. “The rule laid down in Pleasants v. Heard has not been changed or repealed in civil cases, but on the contrary, in such cases remains in full force.” Judgment affirmed.