ARK.] UNION SAW MILL COMPANY V. HAYES. .17 UNION SAW MILL COMPANY V. HAYES. 4-4093 Opinion delivered January 13, 1936. 1. MASTER AND SERVANT—ASSUMED RISK.—An employer is not liable to an employee where the employee's knowledge of danger equals or surpasses that of the employer. 2. MASTER AND SERVANT—ASSUMED RISK.—An employee assumCs ail the ordinary risks and hazards incident to his employment. 3: MASTER AND SERVANT—ASSUMED RIsic.—In an action by an employee for injuries sustained when a tree fell in the wrong direction, the employee having knowledge of all the facts, held that the risk was assumed. Appeal from Union Circuit:Court, Second DiviSion; Gus W. Jones, Judge reversed.
18 UNION SAW MILL COMPANY V. HAYES. [192 'Gaughan, Sifford,.Godwin & Gaughwa, for appellant. J.T7 Spencer and Marsh & Marsh, for . appellee. MEHAFFY,: J., This suit was brought .by appellee 'against the Union Saw'•Mill Company and the• Crossett Lumber Company for damages.for an: injury suffered on October 25, 1933.. The. court sustained a motion to quash service as 'to the. Crossett Lumber Company, and the case proceeded to . trial against the appellant alone. . • . The appellee alleged that a long time . prior . to the time of his injury.he, with. other employees of the •Union Saw Mill Company, • had been,engaged in cutting right-of-way, making cross-ties and cutting wood for the Union Saw Mill Company ; that . on, October 10, 1933, the superintendent of the Union Saw Mill Company. had..advised its , employees that its, miq at Huttig had burned, and that they would go , to,,work , cutting chemical wood to be used by the 'Crossett Lumber Company, and..appellee and other employees were carried to and. , frour,their homes at the Union, Saw Mill camp , to the, point where said work,was to be done; that the foreman of the :Union .Saw Mill Company directed the . inanner , . of !their work: ing, and J. B. Withers, foreman of the Crossett Lumber Company, directed them , as to the place where they should work, and the kind of timber they should cut; that he and other members of the crew were under the joint direction and control of the : saw mill company and the Crossett Lumber Company; that on October 25 appellee and Clem' Collin, ' another einplOyee of the Union Saw Mill Company, were directed 'to cut down a large post oak tree about 18 inches in diameter that..was leaning, and after Making preparations felling' the tree, they started sawing, and because the , tree. was leaning,. the appellee instructed Who' Was handling 'one end of the crosscut saw, 'tO' hold the' sAw • back and not cut his corner of the, tree . off for the reason-that, if he should cut his corner,..it .wonld, on account-, of the tree being leaning, cause the tree to kick back over the stump,. and would be dangerous ; Colvin agreed . to follow the instructions of appellee, but did not do so,' but sawed his 'side :of the tree completely 'through,• and this..caused the tree, in falling to kick back, g trike plaintiff; injuring his leg,. ay
'ARK.] UNION SAW Miii COMPANY 'V. HAYES. The complaint' deseribes- his injuries and the time he was in . the hospital, and alleges that: his injuries- are permanent. • The 'Union . Saw Mill . Company filed• answer denying the material allegations 'of the . complaint; and alleging that appellee. was working for the CroSsett Lumber:Company • and not for the .appella a n t:- It alleges .. tliat !his: in.-- juries Were 'received because his own negligence . , ,and that he assumed! the risk. .In the view the :court takes. of this -case, , it . is unnecessary:to copy the . évidence' or tO discuss any. questions• except the question of the . negligence of the defend:- ant and the assumption of risk by appellee, ". : The. appellee.testifi . ed that,. the morning he got hurt, he •and another servant, .Clem Colvin, started to cut .a leaning tree;• they sawed • it on one side and blocked it out;: the tree was sagging, to , the left; he told Colvin tO hold his left corner to keep . it from. splitting, and he said he would; Colvin sawed his ,corner off . first, and. when it fell it struck a snag and jumped,,backwards ; if he. had held his corner, the tree would have fallen-.in . a clear place ;. when the tree kicked back it ,caught his.foot, and they had to .saw off •a,part of 'the tree..before he, could get : this ,foot loose.. No.one told them : how to do their work, and appellee knew as well as . any one, how.to:cut down :a tree. , „There .were no , bushes or undergrowth where the tree was,cut except:the snag which was .about eight or ten.feet away, and about ten or twelve feet high; the, tiee• bent to the.left. of the suag.. In sawing the tree down appellee had : his. left. hand, to the tree; the:tree was leaning to the left of the snag, but, if Colvin had not cut off his corner first., it would have fallen to the right of the snag; the tree hit the snag and kicked back on 'appellee. There was. a yerdict and judgment for the appellee, and the case is here on appeal, . There is considerable 'tetimony as to whose employees appellee ...and Qolvin'were; . and. testimony as tb the extent of appellee ? s injury, 'The writer , is of opinion thatithe fa4$ . testiAed , to ty the :appellee 'were. Siifficient to require the : submission of . the„case to the jury,..hut majority are of the opinion that. the evidence does not
90 [192 show any negligence on the part of the Union Saw Mill Company, and that the evidence shows that appellee assumed the risk. Appellant calls attention to the case of MeEachin v. Yarborough, 189 Ark. 434, 74 S. W. (2d) 228. In that case the court said: "No liability exists against appellants and in favor of appellee under facts and circumstances here presented. 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." In support Of this declaration of law, the court -cites 18 R. C. L. 548; Arkansas Smokeless Coal Co. v. Pippins, 92 Ark. 138, 122 S. W. 113. The court further said in that case: "The uncontradicted testimony here shows that the employer had no superior knowledge to that of employee in reference to nature of the stone being used, therefore no duty to perform the neglect of which would create liability.'" The court also said in the same case: "Moreover, it has been the long-established doctrine of this jurisdiction, that an eMployee assumes all the ordinary risks and hazards incident to his employment."' A majority of the court are of opinion, not only that nO negligence of the appellant is shown, but also that the appellee had knowledge of all the facts and assumed the risk. For these reasons the judgment of the court is reversed, and the cause 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.