Richardson v. Huitt

Sam Robinson, Associate Justice. Appellant, Clifton Richardson, and appellee, Mark Wilson Huitt, age 40, are friends and neighbors. Huitt had a small tomato patch in Richardson’s back yard. They live in Warren, where Huitt is a member of the police department. Richardson has two pecan trees in his yard. In November, 1962, he asked Huitt to thrash one of the trees and offered to pay him for doing it. Huitt agreed, and a few days later went over to Richardson’s place for that purpose. Mrs. Richardson advised Huitt not to climb the tree; the men, however, did not agree with her. Richardson produced a ladder so that Huitt could get up in the tree, and also a pole with which to do the thrashing. Huitt went up in the tree and proceeded to thrash out the pecans. After he had thrashed all the pecans he could with the pole, Richardson gave him a hammer weighing about sis pounds which Huitt used to strike the limbs and thrash out more pecans. After Huitt had been using the hammer 10 or 15 minutes, the limb on which he was standing broke; he fell to the ground, and both ankles were broken. In March, 1963, Huitt filed this suit against Richardson alleging: “1. That the Defendant failed to inspect the tree which he asked the Plaintiff to climb; 2. That Defendant had knowledge of the fact that this particular pecan tree had dead limbs periodically and same should be removed from the tree; 3. That the Defendant was negligent in failing to warn the Plaintiff of the dead limbs in the said pecan tree ; 4. That the Defendant was negligent in failing to provide this Plaintiff with a safe place in which to work. ’ ’ Later the complaint was amended to allege: “The Defendant, Clifton Richardson, was negligent in failing to furnish the Plaintiff, Wilson Huitt, with safe appliances with which to perform the work Plaintiff was employed to perform.” Richardson answered denying any negligence on his part and pleaded the affirmative defenses of contributory negligence and assumption of the risk. There was a trial to a jury which resulted in a verdict in favor of Huitt in the sum of $10,000.00. Richardson has appealed. There are several points involved — the alleged negligence of appellant; the allegation of contributory negligence on the part of appellee, and the question of whether appellee assumed the risk. We reach only the issue of assumption of the risk, and we have concluded that the undisputed evidence shows that Huitt did assume the risk. There is no evidence that appellant knew Huitt was standing on a dead limb. Huitt testified: “Q. Was there anything wrong about that limb that you stood on? A. Not that I know of. Q. Was it a green limb? A. 'When I climbed the tree, there wasn’t no leaves on the tree. Nothing but pecans and little twigs. Wasn’t no green limbs. One limb looked just as green to me as another. Q. And this limb looked just as green as the others ? A. Just as green as the others. Q. Looked just as sound as the others? A. Just as sound as the others. Q. No way you could look at it and told any different? A. I imagine if a man got out there and took a little ax or something and hit on it, he might could have found the good ones from the dead ones. Q. But you couldn’t have told the difference hy looking at them? Just looking at the tree, you couldn’t tell? A. No, sir. Q. You couldn’t tell hy just standing under the tree) either, could you? A. No, sir. Q. Did you take an ax, or anything like that, and test this limh before you stood on it? A. No, sir, I didn’t. Q. Why didn’t you? A. Because I didn’t have no ax and I didn’t think the limb was rotten. It was as green as the rest. Q. After he handed the hammer up to you, did you take the hammer and beat the limb a little hit and see whether or not it was rotten? A. No, sir. Q. Why didn’t you? A. Because I thought the limh was as green as the rest of them. It was a 4 inch. I figured it would hold me up. Q. In other words, at that time and nor now, did you see anything or observe anything that would have caused you to suspicion or believe or think that the limb might not he completely sound and green? Is that right? A. To me, one limb up there looked just as sound as the other and that’s why I stood on it. Q. You thought the limb was safe, didn’t you? A. Yes, sir. Q. Was there anything about the limb where anybody could have known that the limb was not good? A. As I said a while ago, anybody could just walk up there and just look at it and it looked good. You might take an ax or hammer and hit it and tell the difference, but just walking up to the limb, you couldn’t.” Appellee cites cases to the effect that it is the duty of the master to use ordinary care to furnish the servant a safe place to work, and, of course, the law is well established to that effect, but we know of no case where this rule has been extended to require the owner of pecan trees to furnish, for thrashing, trees having no dead limbs. And, furthermore, it has been held that the rule is not applicable where the employee assumes the risk. The court said in Gans Salvage Co. v. Byrnes, 62 A. 155: "An employee who contracts for the performance of hazardous duties assumes such risks as are incident to their discharge from causes open or obvious, the dangerous character of which he had an opportunity to' ascertain. . . . One who remains in a service which necessarily exposes him to hazardous risks from causes open and obvious, the dangerous character of which he knew or had an opportunity of knowing, must be considered as having assumed such risks, and, if injured in consequence thereof, has no claim against the employer . . . This doctrine, firmly grounded in the law of this state, in the law of England, and of probably every state in the federal Union, though usually stated as a general rule, constitutes, in reality, an exception to or qualification of the broad principle which requires the employer to use ordinary care to provide a reasonably safe place in which the servant may perform his work. It may be taken, then, as a postulate, that a servant, who, on entering into a contract of employment, knows of the dangers of the premises or place of work, or by the use of ordinary care could see and understand them, assumes the risks which arise therefrom.” Of course, the tree itself was not dead as shown by the fact that it bore pecans. True, it had a dead limb, but there may be a dead limb on any tree, and that is one of the hazards that appellee assumed when he undertook to thrash the tree. There is no contention that Richardson told Huitt to stand on the limb that broke. It is fairly inferrable from the evidence that appellee made his own selection of the limbs on which he would stand while thrashing the tree. It is not shown that any equipment furnished by Richardson was defective. An employee assumes the risk of all dangers ordinarily incident to his employment. Grayson-McLeod Lumber Co. v. Carter, 76 Ark. 69, 88 S. W. 597; Walther v. Cooley, 221 Ark. 1027, 279 S. W. 2d 288. See also Ark. Digest, Master & Servant, §§ 206 and 213, and the cases therein cited. Climbing a pecan tree that is 60 feet in height to thrash it is a dangerous business. There is always danger of a limb breaking, and such danger is incidental to the undertaking of thrashing the tree. It is said in Labatt’s Master and Servant, Yol. 3, P. 3130: “A doctrine frequently recognized in the formal statements of the courts is that the principle which charges a servant with an assumption of the ordinary risk of an employment is applicable whether that employment may or may not be described as being inherently dangerous. It is, in fact, quite clear that any other position would be entirely illogical and unreasonable. Provided the risk from which the injury results is, as a matter of fact, obviously incident to the employment undertaken by the servant, it is impossible to argue, with any show of reason, that the essential elements from which an assumption of that risk is predicable are not present.” Prom a long list of cited cases, Labatt’s gives numerous illustrations, such as: “ There are many kinds of work in which danger is necessarily inherent, where precautions such as would insure safety to the workman are either impossible, or would only be attainable at an expense altogether incommensurate with the end to be accomplished. In all such cases the workman must rely upon his own nerve and skill; and in the absence of express stipulation to the contrary the risk is held to be with him, and not with the employer.” Appellee cites several cases holding that the servant did not assume the risk under the particular facts involved, but all of the cited cases are distinguishable on the facts from the case at bar. When the established law of assumed risk is applied to the undisputed facts in this case, there can be no recovery. Reversed and dismissed. McF addin, J. concurs. Johnson, J. dissents.