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(273 S.W.)

that the killing was intentional, and resulted from the use of a deadly weapon. The killing was not the result of an accident at all, but it was intentional on the part of the defendant. His defense was that it was necessary to shoot and kill the deceased in order to save his own life or save himself from great bodily harm. Therefore, under the authorities just cited, the court did not err in refusing to instruct the jury on involuntary manslaughter.

Error is also assigned in the refusal of the court to give other instructions asked by the defendant. We do not think that this assignment of error is well taken. A comparison of the refused instructions with the instructions given by the court shows that the matters embraced in the refused instructions were fully covered by those given by the court.

[7] Finally it is insisted that the court erred in refusing to allow the defendant to testify about a difficulty which occurred between the defendant and the deceased in 1914. The killing occurred on the 4th day of July, 1921, and the undisputed testimony showed that they had been friendly during that spring. We think, however, that proof of the difficulty which occurred in 1914 is too remote unless a hostile feeling had existed between the parties since that occurrence down to the date of the killing. Therefore there

was no error in refusing this testimony.

Cochrell v. State, 148 Ark. 256, 229 S. W. 733. We find no prejudicial error in the record, and the judgment will be affirmed.

CHICAGO, R. I. & P. RY. CO. v. DANIEL. (No. 52.)

(Supreme Court of Arkansas. June 15, 1925.) 1. Master and servant 288 (162) -Whether operator of saw assumed risk of injury from negligence of helper held question for jury.

In action by operator of ripsaw for injuries caused by negligence of helper, in view of evidence that helper up to time of accident performed duty properly, and from which it could reasonably be concluded that plaintiff did not know of negligence of helper in time to have avoided injury, whether plaintiff assumed risk of negligence of helper was question for jury.

2. Appeal and error 930(1)-On challenge to verdict on appeal, only inquiry is whether there is any substantial evidence to sustain

it, and evidence is given strongest proba

tive force in favor of verdict.

Where verdict is challenged on appeal, only inquiry is whether there is any substantial evidence to sustain it, and evidence must be given strongest probative force in favor of verdict.

3. Trial 141-If testimony is undisputed, and all reasonable minds must draw same conclusion of fact therefrom, court has duty to declare, as matter of law, conclusion to be reached therefrom.

Where testimony is undisputed, and all reasonable minds must draw same conclusion of fact from it, it is duty of court to declare, as matter of law, only conclusion or finding of fact to be reached from consideration thereof. 4. Master and servant 217(29)—Experienced rip sawyer held to have assumed ordinary risks, including manner in which he observed work was done by helper.

Experienced rip sawyer, injured in operation of ripsaw, assumed all ordinary risks incident to work, including manner in which he observed that work was being done by helper.

5. Master and servant 217(29)-Negligence of helper held not obvious risk which operator of ripsaw was bound to observe.

suming ordinary risks incident to work, had Experienced ripsaw operator, although asright to assume that helper would perform duty until something occurred to advise him to contrary, and where, up to time of accident, nothing occurred in conduct of helper to indicate that he was not discharging and would not discharge his duty properly, negligence of in performance of duties, was not bound to obsuch helper was risk which he, in ordinary care

serve.

6. Master and servant 217(1)-Doctrine of assumption of risk predicated on knowledge. cated on knowledge, actual or constructive, of Doctrine of assumption of risk is prediemployee of risks to be encountered and his consent to be subjected thereto.

7. Master and servant 204 (3)-Under statute employee does not assume risk of injury from fellow servant's negligence of which he did not have knowledge.

Although Employer's Liability Act does not deprive employer of defense of assumption of risk, where injury is result of negligent acts of fellow servant of which injured employee had knowledge, neither does injured employee assume risk of injury from negligence of fellow servant of which he did not have knowledge and did not appreciate.

Appeal from Circuit Court, Prairie County; Geo. W. Clark, Judge.

Action by Thomas B. Daniel against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Buzbee, Pugh & Harrison, of Little Rock, for appellant.

Taylor Roberts and Tom W. Campbell, both of Little Rock, for appellee.

WOOD, J. This is an action by the appellee against the appellants for a personal injury. The appellee alleged in substance that he was in the employ of the appellant com

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pany in its mill department as a rip sawyer, that the automatic feeder would not carry and that while engaged in the discharge of the board through straight, and that he his duties a board, which he was attempting should not use the feeder because it was to rip, was thrown against the appellee in- junking too much stuff. By not using the flicting serious injuries upon him; that Ray- feeder and with the helper on the other side mond Kimbrel was appellee's helper and also to hold the board down and pull it through in the employ of the appellant company; that while appellee was holding it against the Kimbrel's duty was to stand at the end of the guide, the boards could be ripped accurately. table at the back of the ripsaw and to hold down the board firmly so as to keep it from bucking up or kicking back, and to help pull said board along the table against the saw as appellee held it against the guide, thereby helping to rip same; that while appellee was pushing the board in question against the saw to rip same, Kimbrel negligently failed to properly hold the board down upon the table and thereby allowed the same to buck up and get back upon the saw so that the teeth of the saw caught upon the surface of the board, and the board was thrown back with terrific force against the appellee.

The appellants denied all the material allegations of the complaint as to negligence, and set up the affirmative defenses of contributory negligence and assumed risk on the part of the appellee. The facts are substantially as follows:

On the 12th of July, 1923, appellee was working for the appellant company in its shops at Biddle as a rip sawyer. The ripsaw is a circular saw and revolved in a slot through the center of the top of the table. The table was 4 feet wide and 61⁄2 feet long. The appellee's duties required him to stand at the end of the table in front of the saw and press the boards he was ripping against the saw, while it was revolving rapidly, in order to rip the boards. It was his duty to rip the boards as they were brought to him by another one of the company's employees. At the time the appellee was injured, he was ripping door stocks 381⁄2 inches long, % of an inch thick, and 12 inches wide. The boards were to be ripped down to 71⁄2 inches. There were four of these boards, and appellee was injured as he was ripping the fourth board. The saw was operated on a mandrel in the center of the table with a frame device for feeding above the saw. The feeder was sitting on an iron frame above the table and in front of the saw. It had 3 or 4 little sprocket or teeth wheels to push the plank through and on to the back of the saw. Some 26 or 28 inches from this feeder was a steel roll 5 inches in diameter and 12 or 14 inches long at the back of the saw, the purpose of which was to hold down the back end of the board as it passed through the saw. The board did not come under this roll until it had gone through the saw and was 8 or 10 inches beyond the back end of the saw. The saw could be operated without using the automatic feeder. Appellee was not using the automatic feeder at the time he was injured for the reason that he could not get good results by

Kimbrel, the appellee's helper, could hold the boards down with his hands or with pulloff sticks which were from 3 to 6 feet long. They were about 2 inches wide and 1 inch thick with an inch shoulder projecting at right angles from the edge at one end. They were designed so that the helper could hold down the board by placing his strength on it, and at the same time assist in ripping the board by pulling the same against the saw. There were 3 or 4 of these pull-off sticks lying on the helper's end of the table at the time the appellee was injured. It was not appellee's duty to use the pull-off sticks and he could not do so from his end of the table. The pull-off stick, used by the helper at the time of the injury, was 5 or 6 feet long. The helper had plenty of room. If he did his duty he could hold down the board with the pull-off stick by putting his strength on it. It was not necessary for the helper to take hold of the board either with his hands or the pull-off stick until the saw had ripped into the board more than half the width of the saw. At the time appellee was injured, he was ripping what was called "a bull pine board" made of knotty pine, and it was a sap board and a little damp. At the time appellee was injured, the board was about through the saw when it was kicked back. It pushed close up against the saw and began to buck, went to pinching, bucked up and over. It got on top of the saw and shot back. It was not possible for appellee at his end of the board to hold the same down and keep it from bucking up for the reason that the back end of the saw comes up, and the front end goes down, and whenever a board rides up on the saw it rides up on the back end-the end next to the helper. The negro helper did not hold his hands on the board. touched it. There were 71⁄2 inches between the saw and the guide. It was 21⁄2 feet, not over 24 feet, from the back of the saw to the end of the table where the helper was standing. He had 721⁄2 inches on the other side of the saw where he could easily put his hands on the board without coming in contact with the saw. He could have done better by putting his hand on each side of the saw. He would have had to reach over to have done so, or he could have used the pull-off stick. He did not do it. Appellee didn't know whether the helper attempted to hold down the board or not, but it was his duty to have done so. Appellee was not looking at him at the time. It was his duty to have watched every board as appellee pushed it

He never

(273 S.W.)

of the board. It was not appellee's duty to watch the helper. Appellee was depending on his helper to take care of his own end-to watch the board and take care of it as he had always done. Appellee assumed that his helper was doing his duty, but when appellee saw the board buck up and that the helper was not holding it down, he hollered to him to get the board and hold it down. The board bucked up on top of the saw and was thrown back with terrific force against the appellee striking him in the groin, knocking him down and breaking his hip. The appellee had worked at a rip saw for years and was an experienced operator. A model was before the trial court and was also used before this court in the oral argument, explaining the machine and the method of operation at the time appellee was injured.

[1] The appellant prayed the court to instruct the jury to return a verdict in its favor, which prayer the court refused, and the appellant duly excepted. The jury returned a verdict in favor of the appellee in the sum of $2,500. The court rendered judgment in accordance with the verdict, from which is this appeal. The only contention of learned counsel for appellant in brief and oral argument is that, under the undisputed facts of this record, the appellant was entitled to an instructed verdict on the ground that the appellee had assumed risk of the injury which he received. But we are convinced that the trial court ruled correctly in refusing to instruct the jury, as a matter of law, that the appellee had assumed the risk. It was an issue for the jury, under the evidence, to determine whether or not the appellee assumed the risk.

[2, 3] In reaching this conclusion, we observe the well-settled rules often announced, that when a cause reaches this court and the verdict is challenged, the only inquiry is whether there is any substantial evidence to sustain it, and the evidence must be given its strongest probative force in favor of the verdict; and that where the testimony is undisputed and all reasonable minds must draw the same conclusion of fact from it, then it is the duty of the court to declare, as a matter of law, the only conclusion or finding of fact to be reached from a consideration of the testimony. Fowler v. Hammett, 162 Ark. 307-317, 258 S. W. 392.

that, as applied to the facts of this record, appellant was entitled to an instructed verdict.. It occurs to us that reasonable minds might have concluded from the testimony of the appellee that he did not know of the negligence of his helper in failing to hold down the board in time to have avoided the injury caused by such negligence. While the appellee does testify that he saw that his helper was not holding the board down and told him to get hold of it and hold it down, yet the appellee was asked the following question: "Did you know it at the very occurrence of the accident," and answered, "No, sir; I was interested in looking at the board; I was not looking at my helper." The appellee testified that it was not his duty to watch the helper; that is was his duty to watch his own business. To rip the board accurately and get the same out exactly according to specifications given it was necessary for him to give attention to his end of the board and hold the same against the guide, and it was likewise necessary that the helper give attention to his end of the board by holding same down either with the pull sticks, or by pressing down upon it and pulling it through with his hands. This was the helper's duty, and up to the time of the accident he had performed it, and there was nothing to cause the appellee to apprehend that the helper would not still do so until the board began to buck, and then it was too late for the appellee to avoid the injury.

[4, 5] At least, we believe the testimony would fully justify reasonable minds in coming to such conclusion. The appellee was an experienced rip sawyer, and unquestionably assumed all the ordinary risks incident to his work, including the manner in which he observed that the work was being done by his helper. Graham v. Thrall, 95 Ark. 560, 129 S. W. 532. But the appellee had a right to assume that the helper would perform his duty until something occurred to advise him to the contrary, and up to the time of the accident nothing had occurred in the conduct of the appellee's helper to indicate that he was not discharging, and would not discharge, the duty incumbent upon him to hold down his end of the board. On the contrary, the undisputed testimony shows that the helper had been faithfully performing his duty with reference to the several boards that had

be said that the negligence of appellee's helper and fellow servant was an obvious risk of which the appellee, in the exercise of ordinary care in the performance of his own duties, was bound to observe.

In sending to the jury the issue of assump-| been previously ripped that day. So it cannot tion of risk, the trial court instructed that"The servant assumes all the ordinary and usual risks and hazards that are incident to the service in which he is engaged, but he does not assume the risk of any injury, danger, or peril that arises from, or is caused by, the negligence of a fellow servant, unless he knows, or by the exercise of ordinary care could have known, of such negligence, and appreciates the danger thereof in time to avoid the injury."

Counsel for appellant concede the correctness of the law as thus announced, but insist 273 S.W.-2

In St. Louis, etc., Ry. Co. v. Martin, 165 Ark. 30, 262 S. W. 982, we said:

"While an employee assumes such extraordinary risks caused by the master's or fellow servant's negligence as are obvious and fully known and appreciated by him, he does not assume extraordinary risks incident to his em

ployment merely because he was familiar with the dangers and character of the work."

[6] The doctrine of assumption of risk is predicated upon the knowledge, actual or constructive, of the employee of the risks to be encountered and his consent to be subjected thereto. Carter v. K. C. S. Ry. Co. (Tex. Civ. App.) 155 S. W. 638.

[7] In E. L. Bruce Co. v. Yax, 135 Ark. 480, at page 492, 199 S. W. 535, 539, speaking of the Employer's Liability Act (Act 175 of the Acts of 1913, p. 734) we said:

"The statute was not intended to and does not deprive the employer of the right to set up the defense of assumption of risk by the injured employee, where such injury was the result of the negligent acts of a fellow servant of which the injured employee had knowledge and the dangers of which he appreciated."

But the converse is likewise true, and the injured employee does not assume the risk of injury from the negligence of a fellow servant of which he did not have knowledge and did not appreciate. As we have already stated, the jury might have well concluded that the appellee did not have knowledge of the negligence of his helper and appreciate the danger of such negligence in time to avoid the injury. There was nothing in the testimony to warrant the inference and justify the court in declaring, as a matter of law, that appellee should have anticipated that his helper might be negligent in the performance of his duties, and that the appellee should have exercised ordinary care to discover and protect himself against such negligence. See St. Louis, etc., Ry. Co. v. Martin, supra; St. Louis, etc., Ry. Co. v. Blevins, 160 Ark. 363, 254 S. W. 671.

There is no reversible error in the record. Therefore the judgment is affirmed.

NELON v. J. B. DUNCAN CO. (No. 73.)

(Supreme Court of Arkansas. June 22, 1925.) Attachment 47(4)-Homestead 57 (3)Evidence held to sustain finding that defendant was nonresident at time attachment suit instituted, and that land attached was not his homestead.

fendant's motion to vacate judgment and have action retried was overruled, and final judgment entered for plaintiff, from which defendant appeals. Affirmed.

Williams & Holloway, of Lonoke, for appellant.

Gray & Morris, of England, for appellee.

SMITH, J. Appellant was sued on an open account and an attachment was levied on certain real estate in which he owned an undivided one-third interest. Upon the affidavit of one of the plaintiffs that defendant was a nonresident of the state, which was made on the 6th day of January, 1923, a warning order was published, and the proof of publication thereof was duly filed.

The attorney ad litem appointed by the clerk filed a report, in which he alleged that appellant, the defendant below, was not a nonresident of the state, but was absent temporarily therefrom. This report was filed September 5, 1923. The firm of attorneys of which the attorney ad litem was a member filed an answer denying that defendant was indebted to the plaintiff and controverted the grounds of attachment.

The cause was by consent heard by the court sitting as a jury, and the attachment was sustained, and it was recited that inasmuch as the appearance of the defendant had been entered a personal judgment should be rendered, and this was done. Time for paying the judgment which the court rendered was allowed, with directions to the sheriff to sell the land if the judgment was not paid within the time limited.

On September 14, 1923, defendant, by his attorney, filed a motion to vacate the judgment, and the court made an order suspending this judgment during the hearing of the motion. This motion was filed under section 6266, C. & M. Digest, which provides that, where a judgment has been rendered against a defendant constructively summoned, and who did not appear, such defendant may at any time within two years after the rendition of the judgment appear in open court and move to have the action retried. This motion appears to have been finally heard on February 5, 1924, at which time it was overruled and a final judgment entered for the plaintiff.

On motion by defendant, under Crawford & Moses' Dig. § 6266, to have judgment, in atA bill of exceptions was prepared, in which tachment entered against him, vacated and ac- the proceedings had on February 5, 1924, were tion retried, evidence held to sustain finding that defendant was nonresident at time of in- shown. The defendant was personally presstitution of suit, and that land was not his ent on that day, and this appears to have been homestead; hence motion was properly over-his first personal appearance in court. The ruled.

only testimony heard was that of appellant himself, and it was attempted by this testi

Appeal from Circuit Court, Lonoke Coun- mony to show that he was not a nonresident ty; George W. Clark, Judge.

Action by the J. B. Duncan Company against Scott Nelon, in which personal judgment was entered against defendant.

of the state and that the land was his homestead.

From this testimony it developed that the Deland attached had belonged to appellant's

(273 S.W.)

father, who was survived by his widow, ap- violence on deceased's part, and defendant was pellant, and one other child. Appellant's not entitled to prove it as material, or to conmother occupied the land as her homestead tradict M. in regard to his statement concernafter the death of appellant's father, but the ing it. court found that it had not been the homestead of appellant. Appellant's father died about the year 1920, and his mother died in October, 1921, and appellant admitted that he had not lived on the land since 1918.

Appellant admitted that he left the state in 1922, and by his own admission he deserted his family, consisting of an invalid wife and four small children, when he did so. He lived in the states of Oregon and Washington during the time he was away from home, and during all that time did not communicate with his family. Appellant owned some personal property, which he mortgaged before leaving; in fact, he appears to have mortgaged the property for that purpose, and he remained out West until after this suit had been brought and the first judgment had been rendered against him.

We think the testimony fully supports the finding that appellant was a nonresident at the time of the institution of the suit; and we think the testimony also warranted the finding made by the court that the land was not appellant's homestead.

This being true, it follows that the judg ment is correct, and it is affirmed.

BURRIS v. STATE. (No. 45.)

(Supreme Court of Arkansas.

June 15, 1925.
Rehearing Denied, with Modification,
July 6, 1925.)

1. Homicide 163(2)-Evidence that deceased failed to give credit on another account held incompetent and properly excluded.

In murder prosecution, difficulty having arisen over account which deceased alleged was owing by defendant, evidence that deceased improperly failed to give credit on another man's account was incompetent and properly excluded.

2. Criminal law 448(11)-Testimony that no attack made by deceased was statement of fact and not of conclusion.

In murder prosecution, response of witness that there was no attack made to question as to what, if anything, deceased did toward making an attack on defendant, was not a statement of a conclusion but one of fact.

3. Homicide 190(1)-Witnesses 405 (1) -Question as to statement by deceased that another ought to whip defendant was not a threat of violence on deceased's part, and hence properly excluded.

In murder prosecution, fatal difficulty having arisen over account which deceased claimed was owing by defendant, question as to statement of deceased to effect that M. ought to go down there and give defendant a whipping was properly excluded, as it was not a threat of

4. Criminal law 670-Duty of counsel to remove trial judge's misunderstanding of question which judge did not permit to be answered.

If trial judge, in refusing to permit propounded question to be answered, misunderstood the question, it was duty of counsel to remove such misunderstanding. 5. Criminal law 413(1)-Defendant's statements to others that he believed himself insane is self-serving and incompetent.

In murder prosecution, insanity being one of defenses, oral and written statements made by defendant to others, that he believed himself to be insane, were self-serving declarations of defendant, and incompetent, and could not properly form basis of opinion as to defend

ant's mental condition.

6. Criminal law 483-Exclusion of question to expert witness held not error, where answer would have been but mere repetition of what he already said.

In murder prosecution, one of defenses being insanity, refusal to permit question to expert witness as to whether defendant would be capable of determining difference between right

and wrong thing to do with reference to any

specific act, was not error, where witness had theretofore stated that defendant would not be capable of deliberation and premeditation with reference to his acts, since answer of witness to excluded question would have been. mere repetition.

7. Criminal law 364 (5)-Conclusion of defendant that he had acted in self-defense incompetent as part of res gestæ, and properly excluded.

In murder prosecution, testimony that defendant, immediately after killing, stated that deceased forced defendant to do it to protect himself, was nothing more than conclusion to effect that defendants had acted in self-defense, and was incompetent as part of res gestæ.

8. Witnesses 212-Testimony of defendant's family physicians as to his mental condition, not obtained from any information received for purpose of treating defendant, held properly admitted.

In murder prosecution, testimony of physicians as to defendant's mental condition, based on mere observation of defendant during their acquaintance with him as family physician, and by observing him while on witness stand, but not from any information received for purpose of treating him, held properly admitted, as Crawford & Moses' Dig. § 4149, only excludes testimony of physician as to information necessary to enable him to prescribe as a physician.

9. Criminal law

829(18)-Instruction covered by court's charge properly refused. Defendant's requested instruction on subject of reasonable doubt, which was fully covered by court's charge, was properly refused.

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