ARK.] BRUNER IVORY HANULE CO. V. WEST. 479 BRUNER IVORY • HNDLE COMPANY V; WEST. • 4-3997 Opillimi delivered Oetober 21, 1935. 'MASTER AND SERVANT—RISKS ASSUMED.—An employee of ordinary intelligence, experienced in the line of his duty and not working under the immediate direction of a superior, assumes the risk of dangers incident to conditions produced through the negligence of his employer which .are obvious and imminent and which he must have known and appreciated in the exercise of ordinary care for his own : safety in the performance of his dutieS. 2. MASTER AND SERVANT—RISKS ASSUMED.--An employer is not to be .deemed asH matter of law to have- assumed the risk of the employer's negligence unless the danger therefrom was so obvious to • an ordinarily . careful person in his situation would have observed the risk and appreciated the .danger. • 3. MASTER AND SERVANT--RISKS * ASSUMED—JURY QUESTION.—Where, in repairing a platform, the emPleyer used a warped plank with out the employee's knowledge, and , the employee, while carrying a • heavy load of handles, failed to see the warped plank, which had • just been inserted, held that it was a question for the jury whether he assumed the riSk.. 4. MASTER AND SERVANT-=PROMISE TO REPAIR.—In. ' an employee's action 'for injuries sustained when he' fell over a warped plank used to repair . a hole in a platform, evidence regarding a conversation between the employee and forminan as to the latter's promise to repair the platform, while immaterial, held not prejudicial Where it was meyely part of the narrative explaining. the employee's action. 5. MASTER AND S ERVANT—PROMISE TO REPAIn—INSTRUCTION.—Iri an employee's action for injuries s sustained when he stuMbled and fell over a warped plank inserted in a platform; language of an in-
480 BRUNER IVORY HANDLE CO. V. WEST. [191 struction relating to a . promise of the foreman to the employee to repair , the hole. held not prejudicial where the: only issue .of negligence presented was: the insertion of the warped plank. 6. APPEAL AND ERROR—HARAAESS ERROR. 7--In R Personal injury action where plaintiff's attorney Withdrew a queStion concerning a' 'proposed settlement befdte it was answered, the asking of the t ides-- tion was not prejudicial error, in view of the amount of damages awarded. . 7. DAMAGiS—AMOUNT OP AWARD.—An awa.r d of $5,000 damages to a 397 year-old employee for permanent injuries to his knee where • previously the employee enjoyed good health and earned 0.75 per day, held not 'excessive. ' Appeal from Hempstead Circuit Court ; hexter Bush, Judge; affirmed. McRae (6 Tompk,ins, for ,appellant.. W. S. Atkirns and . Ned_Stewart, for appellee. BUTLER, J. Appellee'brcinght this action to recover damages for:injury sug tained. by him* while in the employ of . the appellant . company. _The negligence , alleged was the failure: to furnish ,a safe . place for plaintiff to work, in that a warped board was • placed dn . the .. platform on which be was : engaged' in 'work; and which, because uf its warped conditinn, Was raised abOve the level: Of the floor, causing .him o timible against it and fall, re'sulting the injury , for which . damage . is sought„ The answer denied the_ material, allegations of the complaint and, as affirmative defenses,- pleaded asSumed risk and contributory negligence. The trial reSulted a verdict' and judgment,in favor . of plaMtiff in 'the Sum'of . $5,000, to ,yeverse ■% , , . b ich _ thisappbatis prosecuted.. , . , . .. The grounds of. error .argued by appellant are: (1) that- the undisputed evidence sbows as a 'matter of law that the apPellee assumed the risk, and: that the trial court, in instructing on the question of . assurned risk, ei: red refnsing tO give instructions 1\1 -Os. 3 and 6 requested by the appellant, but offered to amend these instructions by adding certain words thereto. The effect of these instructions 'as •equested was to-tell the' jury that, 'although the defendant (appellant) negligently placed a . warped board in the platforin, _yet, iVthe de: fective board was raised above .the level of the floor to a degree to make it apparent .and obvious to a person of
BRUNER IVORY HANDLE QO. V. WEST. 481 ordinary intelligence, plaintiff (appellee) assumed the risk arising therefrom, Which would prevent his recovery.. The amendment offered by the court in one instrnction was to add, After the expression; "ordinary intelligence," the Words, "engaged in 'the particular task in which the plaintiff was engaged at *the time of the . alleged injury." To the other instructiOn the amendment offered was to insert, aS a eptalification to the word "obVious" the words; "to the plaintiff, , or if you 'further 'find 'that the said plank should haVe been plainly visible and obvious to'the said plaintiff:in 'the eXercise 'of : due care 'for his oWn safety." These 'instniCtions, as Offered to be amended by_ the conkt, wthild have in effect declared the law''to be. that 'the Appellee would be deemed to have asSumed the risk becasioned by the negligent act of the appellant if the same was So obvious -as to . be at once apparent to a person of ordinary intelligence when engaged in the 'particular task appellee was performing at the time of his injury,' or if said negligent act of appellant wa g Visible and obvious- tO appellee or the defect plainlY visible to appellee in . the exercise of due care for his oWn safety. The question‘ of the • assnmPtion of 'risk and the error as to the instructions of the court 'on that defense' will be considered together: • . . The appellant operates a handle:factory .at Hope, Arkansas', where :it manufactures handles of various, deL scriptions.. Appellee West ,Was 39 years of age.: and had :worked at the . . factory • for 12. years. .He Was a grader's assistant or helper; and ..his duties 'were :to assist the grader, 'and to 'carry or: truck the handles to and from.the dry kiln and warehouse. Little buggies or trucks were furnished for this purpose, and the employees could either- truck the handles or carry them in their arms just as they saw fit. In going to and from, the dry kiln, appellee would pass over a wooden platform about ten or • tiVelve feet in • width, and constructed: of plank8 two inches Thiel( and. .eight inches wide, laid crosswise on joists or stringers. On the day appellee was-injured while performing his work . he fell to the' platfortn, sustaining A painful and perinanent injury..
482 113ttuNK1 Roil y liNNDLE CO. v. WEST., [191 . The evidence relating to the reason: for, appellee's fall, and the circumstances surrounding him at the time adduced in his . behalf, and :which .was accepted by the jury as true,: may . be,briefly stated. as follows : On the morning .of thcinjury, appellee wa . s wheeling.a buggy of handles when , :one ,of , the . wheels broke .through a -plank near the-onteredge : of the platform: .The assistant superintendent:was nearby and witnessed , the. accident, , The handles ;had . fallen, from . the truck and were lying on the platform. ne.assistant . superintenaent directed appel-lee to leave tho handles alone saying :that: he would attend to getting them up , ..• ,He also said he would . have the platform repaired and called negro for , the .purpose of .putting in a new plank. Appellee then went back ,to the warehonse where.he was ,engaged in some duties for a time, and while there heard sounds . which indicated to him that a. new plank was , being inserted. While, the pew ,plank . was being put. in, appellee , did certain work in the dry, kiln, and then came . bround another way, picked up , a bunch of handles, placing them on his shoulder, and started from the warehouse . to the dry kiln across the platform. :He was: carrying .upon,his shoulder forty-five handies which weighed something like two ponnds .each. In returning along the platform. he took a course near its edge op posite to that where the hole had been pre-. vionsly made, being uncertain as to whether or not it had been rePaired. He was glancing in. that direction to:see • if this- had been done, and, when he -reached. the point opposite to where the hole had been, .and to the place where the :new plank: had been inserted,- he struck his foot :against it and - fell heavily to the floor. :He then obseived that the new plank was warped; obtrudthg from 3 to• 3 1 /. inches above the level of the platform—that it had been nailed with a twenty• penny nail :which did not hOld because the supports to which: it was nailed were old awl rotten.. • A nuniber of witnesses, employees of appellant corn-:pally, testified that .the platform was uncovered, and that a.board sticking up -from 3 to 3 1 A inches aboye the level of the floor would be plainly visible and discoverable:at a glance. On the cross--exa,mination of appellee, it de-
. ! ARK.] BRUN s ER IVORY IIANDLE UO. v. WESt. 483 veloPed that he :had used the WaffOrin for a i_iumber Of yearS while in apPellant's employ, crossing it on an av'erL age of fr -oln.15 'to 20. tiMes a daYin the performance-of his work; *that 'he did . 'not see * the elevated boaYd. before 'he' stamf)edi his foe against it, MM that was the first time he had been acrOss the . platform : Since the hew . plank 'had. been inserted. Ire 'Was asked: "DM yOU look before yoir stumped. your toe oifit.?" "Were" yoli loOking where yOii: were gohig? ; ' and ." You *did not lOOk where S TOu ' We're gOing . on aceount of the handles being in your way?'? was : also qUestiOned*.ag to whethei . he lOoked .before cY6ssed the' pWnk. To 'these ' questidns*,he..airsWered.in substance that . lie*,.ceuldn't tell fo:r sure:Where *he .was going on accbunt' of' the 'handles he:'WaS 'ear6 T iiig' on his. shoUlder.;. ..that he had. not laSeertained ' hnW 'Well the hole had 'been fi-. 6,4 and wa'."sinnitiii &;'!. "to. the . left •Mitil could see , h . ow it • looked; that he*clid't lOok so close, .but looked the.best he Could With . * handles on his shouldei. which obscured his .vision, all the tiMe trying fo "shunt !. the hOle to the right not knowing how well it was fixed.* It is insisted . froin this eVideriee' that the, defective' plank was . ..so obvions and discernible that kno-Wl-i edge thereof and the attendant .danger ,thust 'be iinpUted. to the appellee-as a matter' of law creating- an.asSumption of risk on his part. and . barrinereco / YerY:' sUpport this contenffon;we Are cited by aptlellant- to . Many of our ea Ses beginning . With . the ca Seof Dayis v. liatliiietj.h* 53 -MC' 117; 13 S. W.'801; ecinthiuing'dOwn to deciSiOns-Of alate date. To 'review these 'eases' would unduly' e2dend:this opinion and enuld serve'no . useful pUrpoSe, as *the prinei-. ple8 relating : to the doctrine-of a g sumed- risk stated' in. those caSes are Well . settled inthisState %Ad by the.great wei0t-of author4 in Other . jarisdictions; TheY deal With' various phases of the . doetirine; and- nu* that relatin.g..10. the assumption of risk bY . the' Servant Tor , the negligent' act of the master) . and : apprOVe tarying 'language the rule stated in Bailey on PerSonal ect, § cited by. appellant .` i Where aptieay s from' the unT--
disputed evidence that r the'defeds or 'dangers are -oleir . and Obvious 'and such' as-Ili-Mei :1U 'cirenniStanceS Ortglit:
484, BRUNER IVORY HANDLE CO. v. WEST. [191 to have been known and comprehended by the plaintiff, then he will be held to have assumed the risk as a matter of law." We find , no conflict in the authorities as to this rule. The difficulty lies in its application; for it is apparent that the peculiar circumstances of each case must control, and that no one case is authority for its application in another. Under one set of circumstances an open and obvious defect ought to have been known and comprehended by the employee, while under different circumstances it would be a question whether or not such defects should have been known and appreciated by the employee injured by reason thereof. "While, however, open and obvious. perils may not be made the foundatiOn for a recovery for injuries sustained bY reason thereof,. it must appear in order to defeat . the employee' . § 'action that the danger was in fact obvious to one in his situation." 18 R. C. L. 643, § 137. . "An employee of ordinary intelligence, experienced in the line of his duty,: and not working Under the immediate direction of a superior, asSume . s the. risk of dangers incident to conditions' produeed through the negligence of his employer which are obvious .and imminent and which he necessarily must have known and appreciated in the exercise of ordinary care for his own safety in the performance of his .cluties." Francis, v. Ark. Milling Co., 153 Ark. 236, 230 S. W. 1067. • • In St. Louis ' San Francisco By. Co, v. Rlevins,.160: Ark. 362, 262 S. W. 654, the court, in holding that assurnp-tion of risk of an obvious defect was ,a question under the circumstances of that case for the jury, adopted the lan, guage used by the Supreme Court of the United States relating to obvious defects .and consequent dangers hold-. ing.that the servant . is not to be deemed to have assumed the risk unless these • were "so obvious that an ordinarily careful person in his situation would have observed the one. and appreciated the other." . Again, this court, in Missouri Pac. Ry. Co. v. Har-vale, 185 Ark. 47,46 S. W. (2d) 17, said : " On the question of assumed risk, we 'cannot say as a matter of law that appellee assumed the risk. We think it was a question to be submitted to the jury, which the court: did un-
ARK.] 'BRUNER IVORY HANDLE CO. V. WEST. 485 der instructions that are not complained of. It is well settled that under the Federal Employers' Liability Act a servant is net deemed to haVe assumed the risk of the negligence of the Master or that of a fellow-servant un-, less-the conSequent danger iS so- open and obvious that . an ordinarily careful and prudent person in his situation wonld have observed the one and appreciated the other." It might ' be thought that the two cases last cited' would be 'authority only in cases arising tinder 'the,Fed-' eral Employers' Liability . Act ; 'but not se. That act did net change the comMon-law doctrine ef aSsumption of risk, and cases arising under that act are controlled by the same rule as other eases wherein . that . doctririe is involved. Under the evidence in -the case at bar, •we canna' say that the minds of all reasonable men wOuld agree that the appellee was' negligent- in failing to dis- • cover . and guard against the- danger - of the defective - plank, because, from the nature of his duties and . the attendant cirdnmstances which might have served to' distract his . attention to other objects, it cannot . be said as a matter of law that the 'appellee is , barred from 'recovery because ot the assnmption of risk. 'As is said in the case 'of Chbotaw, 0. (E .G. R. Co. v. Jones, 17 Ark. 367, 92 S. W. 244, "As plaintiff' was busily engaged in work. which required his attention; we think it- was open for the jurr to say that he did : not know of or fully' appre t -ciate the' danger, 'and that . theref ore . be did. not, by 'continuing at work, assume the risk of injnry to which he, was exposed by the- carelessness of the foreman." See also E. L. Brace V. Leake, 176 Ark.'705, 3 S. W. (2d) 988. It will be seen from the' anthorities cited that the instructiOns requested ' by . ' the appellant did' not fully declare the law, and the amendments offered by the court were proper and necessary to submit the case to the jUrY under *the rules announeed supra. . ills alio urged by the appellant that the trial Court erred it admitting in . evidence a' converSatioh . had be;- tween the appellee arid the assistant superintendent relk tive to the latter's 'promise to have the - hole repaired.' This objection is based on the . theory that the' promise - to repair was not alleged in the comPlaint. - On the same
486 BRUNER IVORY HANDLE CO. v. WEST. [19:1 ground appellant objected to a part of one of the instructions given on behalf of appellee which referred to the alleged promise to repair the hole in the platform. This evidence was merely a part of the narrative leading to and -explaining appellee's actions, •and, while immaterial, was not prejudicial; so with the- instruction. While the language, of the instruction relating to the promise of the superintendent to repair was unnecessary, it could not have been prejudicial because it clearly appears from the instruction that the only issue of negligence, presented was that of the insertion of the warped plank. It is insisted in the last place that the verdict is excessive. The evidence is ample to sustain the amount of .the award. • .It is to . the effect that prior to the injury appellee was in good health with a life expectancy of more than 28 years earning $2.75 per day ; that he suffered great pain a.s the result of hiS fall so that it was necessary for him to take sedatives in order to . sleep ; that he continues to suffer though many months have elapsed, and that .he will probably suffer pain in the future; that he is a man who had earned his, living as a common laborer ; that the fall injured his knee so badly that it is necessary that he have a special brace; that the condition of his knee is, as described by one of the physicians, ' . 'wobbly and unstable—it would flop the knee back • and -forth, from side to side"; that this was caused by rupture of the ligaments of the knee, and the, injury, in the opinion of this doctor, was permanent. Objection was .made to a question propounded to a witness by appellee's attorney during the trial relating to a proposed settlement between the appellant and appellee whereupon the attorney withdrew the question and apologized to the court. From the amount of damages awarded by the verdict, which to us appear moderate in view of the injury sustained, it is apparent that- no prejudice resulted from the question. It also might be said that this matter was not, presented to the trial court in the . motion for a new trial. We find no prejudicial error, and . the judgment is therefore affirmed.
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.