Jones v. Mayberry

Hart, J. (after- stating the facts). One of the grounds of negligence alleged in the complaint is, that the injury to the plaintiff was caused by the negligence of the off-bearer in throwing a slab so that it would fall upon the one that the plaintiff was holding and thereby caused his hand to fall in the hole where it would be injured by the cog. The evidence shows that the defendants were partners. Therefore they do not come within the terms of the statute which provides that the master shall be liable for injuries caused by.the negligence of fellow-servants. This act applies only to corporations employing servants. Graham v. Thrall, 95 Ark. 560. Counsel for plaintiff contends, however, that the defendants were negligent in not having a cover over the cog and that, inasmuch as, according to plaintiff’s own testimony, it was a part of his duty to help keep the live rolls clear of slabs as it passed the edger machine, the defendant would be liable. Here, however, the plaintiff is met by the doctrine of assumption of risk. According to his own testimony, he had been an edger for nine or ten years and was an expert in that line of work. According to the undisputed evidence, if there had ever been a cover over the cog, it had been off for some time, and the plaintiff knew such to be the fact. The plaintiff also knew the dangers of working near the exposed cog and therefore assumed the risk in working there. . We think that under the plaintiff’s own testimony he assumed the risk of getting his fingers caught in the cog and that the defendants therefore were not liable in damages to him for the injury. In Graham v. Thrall, 95 Ark. 560, the court reiterated the well known rule that a servant assumes all obvious risks of the work in which he is employed, including the risk of injury from the manner in which he sees that the work is being done. The court further held that where a servant knows the place where he is required to work and the methods which are employed by the master in accomplishing the work, and continues in the employment without complaint, he assumes the risks which may result therefrom. In that case the plaintiff was working for a partnership, and on the day of the injury he was helping a crew of men to raise and adjust some piping which was necessary for the equipment of the boilers. The piping was carried to the boilers by a number of laborers placing hand-sticks thereunder. One of the members of the crew was moving a chain along the girder above the boilers from one end to the other in order to use the chain in raising the piping. The plaintiff in that case started to pick up his hand-stick as another laborer moved the chain along the girder. While the plaintiff in the case was picking up Ms hand-stick, the chain fell from the girder on his hand and injured it. The court held that he assumed the risk and could not recover. The principle there announced controls here. It follows-that the judgment must be reversed, and, inasmuch as the case may not have been fully developed in regard to the negligence of the defendants in leaving uncovered or unguarded the cog, the case will be remanded for a new trial.