41.8 STEVENSON 9)..-REIMUPS. [191 STEVENSON V: PilluiPS. 4-3969 Opihion delivered 06tober 14, 1935. 1. MASTER AND SERVANT—INSPECTION OF LIGHT POLES.—Where poles used in constructing a temporary lighting system were 20 feet in length and 6 inches in diameter at the butt, so that an ordinary laborer could determine for himself in the* exercise of ordinary care whether it was fit for use, no duty rested on the employer to make a separate inspection of each pole to ascertain its safety .before . being used. 2. MASTER AND SERVANT—LIABILITY OF MASTER.—Liability exists when the Perils of employment are known to the employer, but not to the employee, and no liability is incurred when the employee's knowledge equals or surpasses that of the employer.
ARK. ] • STEVENSON V. PHILLEPS. • 419 Appeal from 'Phillips Circuit Court; W. Davenport,Judge; reversed. Suit by Ruby Phillips, administratrix,against R. A. Stevenson and others. From- an adverse -judgnient,' fendants- have aPpealed. • Brewer Craeraft; for : appellants. A. M. Coates; for appellee . • • - • HUMPHREYS, J. 'This suit•was brought by 'appellee against appellants' in the cirduit coUrt of . Phillips County to compensate the estate of appellee's 'decea g ed husband for injuries 'received by . falling from . a 'ladder : resting - upon a pole that broke : while he 'was attaching . a - livire thereto. • Appellants and-their el:intl.-actors, Terry & 'QUaSt, were engaged in levee:Construction along the River near Helena, and their 'crews were- running' both day' and night. The night )wOrk necesSitated -the' main-. tenance of a light system. This system was extended as the 'Work progressed. The' poles used in the lighting sys-, tein were cut frOm the banks of the . river aS needed: The posts were Willow,' twenty feet long -and six , inehes diameter at 'the 'bat end. When : the line was : extended, the poats were either taken Op, Cdtried forward;•and'rO.L set, or else-new:ones were mit Mit of : the willow' brakeS next to the riVer: : The' dOutractors, themselves', §ome-times -Worked along' with the men. 'extending 'the line, -and at other times it was extended by ordinary.laborerg;in: chiding the decea8ed. The decead-Was : a drainage engineer and 'drew a *rmibli. aslitry than ;that Of day laborers and perforthed many . duties Wrorki3rog-ressed, including • the extension of the electric light According to- the weight . Of "the testimony, 'he . wa.8' 'the general forenian : in . charge of 'the work' and in charge bf eitending the' eleetric light -lihe -at the tinie he was jUred, 'but there'l was sOme testimOny • teriding 'shoW that hewOrked as' a co L -eMproyee With'the'Other laborer engaged in the construction of the levee as well 'as the electric light line: On the afternodn' Of the s accident, in January, 1933,: the deceased, working 'for appellant, Undertook to Move the set-up 'pit' the -night force"to l a hOW point, and, 'to' asSit him in . the' work; ' Terry &'Qoasty who
420 STEVENSON V. PHILLIPS. • [191 were equally interested in the lights being ready, sent two men to help him. One of these men set up a pole, and thereafter a ladder was set up against the pole which was held in place by two employees of Terry & Quast while deceased climbed the ladder to attach the wire. After he had ascended the ladder to about ten or twelve feet from the ground, the pole broke on account of being rotten, thereby turning the ladder in such a way as to cause deceased to fall to the ground on stumps, resulting in severe and painful injuries. He remained in a local hospital for a short time and afterwards moved to Frank-lin County; Georgia, and committed suicide in June, 1933; before he recovered from the injuries. The pole that broke was one that had been used on the job by deceased and others from thirty to sixty days for the erection of the electric light Jine, and was brought forward by one of the workmen and set in place by some of those engaged in the work. The negligence alleged for recovery was a failure on the part of appellants to inspect the poles before using them in the construction of the electric . light line. Appellants fled an answer denying that any duty rested upon them to make an inspection of the poles before being used to ascertain whether they were defective. "ther -1 cfcnscs ., 1se hlt c,rpf,Q,1 b y .ppo n . nf. as contributory negligence and assumption of the risk by the deceased. . Upon the conclusion of the testimony, appellants requested a directed verdict in their favor, which was refused, whereupon the court submitted the questions - involved to the jury, which resulted in a verdict and consequent judgment for $2,500 against appellants, from which is .this appeal. According to the undisputed evidence, the poles were simple appliances, being only six inches in diameter at the butt and twenty feet long, which could be carried by one man and which were cut when needed as the work progressed from the willow brakes by the ordinary laborers engaged in the work. No separate system of inspection of :these poles was employed so that the laborers might rely thereon in using them.. The deceased was a drainage engineer familiar with the work
ARK.] STEVENSON V. PHILLIPS. 421 in which he was engaged and with the character and kind of poles being used, and, to say the least of it, had knowledge equal to his employers concerning them and the use to which they were being put. Considering . the character and kind of poles and the . pnrpose for which they were being used, no legal duty rested upon appellants to make a separate inspection of each pole before being used to ascertain whether it was safe to set and use it. It was such a Simple appliance that any . ordinary laborer . might determine for himself, in the exercise of ordinary care for his own Safety, whether it was fit to use. - This court said in the case of MeEachin v. - Yar-borough, 189 Ark. 434: "It is a fundamental rule in the law of negligence that liability exists when the perils of the employment are known to the employer, but not to the employee, and no liability is incurred when the employee's knowledge equals or surpasses that of the employer:"• Citing 18 R. C. L., p. 548, and Arkansas Smokeless Coal Company y. Pippins, , k Ark. 138,122 S. W. 113, 19 Ann. Cas. 861. . The rule announced in the McEachin case, supra, is applicable.in the instant case, for certainly it can be said that, according to the tmdisputed evidence, appellants had no .superior knowledge to that; of the deceased .as to the kind of pole , being used and The . purpose for which being used and the condition . in which it was at the time. The deceased knew no system of inspection of these poles was in use upon which he had a right to rely. As stated above, the pole was, a . simple appliance, and it was easy. for deceased to have examined same with reference to its condition and safety and, under the circumstances, .he should have done so. The court erred . in not . peremptorily instructing a verdict for* . appellants ; hence the judgment is reversed, and the cause is dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.