{ "id": 1342315, "name": "Pekin Stave Company v. Ramey", "name_abbreviation": "Pekin Stave Co. v. Ramey", "decision_date": "1913-06-09", "docket_number": "", "first_page": "483", "last_page": "490", "citations": [ { "type": "official", "cite": "108 Ark. 483" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "98 Ark. 425", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1315924 ], "opinion_index": -1, "case_paths": [ "/ark/98/0425-01" ] }, { "cite": "98 Ark. 353", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "89 Ark. 562", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "70 Ark. 183", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "32 Ark. 722", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877115 ], "opinion_index": -1, "case_paths": [ "/ark/32/0722-01" ] }, { "cite": "101 Ark. 201", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "opinion_index": -1 }, { "cite": "100 Ark. 465", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "95 Ark. 564", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "93 Ark. 155", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "90 Ark. 392", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "pin_cites": [ { "page": "411" } ], "opinion_index": -1 }, { "cite": "56 Ark. 221", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "82 Ark. 561", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "89 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515204 ], "opinion_index": -1, "case_paths": [ "/ark/89/0556-01" ] }, { "cite": "79 Ark. 393", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1495639 ], "opinion_index": -1, "case_paths": [ "/ark/79/0393-01" ] }, { "cite": "78 Ark. 148", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "70 Ark. 182", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "105 Ark. 434", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347001 ], "opinion_index": 0, "case_paths": [ "/ark/105/0434-01" ] }, { "cite": "101 Ark. 537", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1310979 ], "opinion_index": 0, "case_paths": [ "/ark/101/0537-01" ] }, { "cite": "90 Ark. 411", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "70 Ark. 179", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509497 ], "opinion_index": 0, "case_paths": [ "/ark/70/0179-01" ] }, { "cite": "105 Ark. 205", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347049 ], "opinion_index": 0, "case_paths": [ "/ark/105/0205-01" ] }, { "cite": "104 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1350625 ], "opinion_index": 0, "case_paths": [ "/ark/104/0001-01" ] }, { "cite": "101 Ark. 201", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "opinion_index": 0 }, { "cite": "100 Ark. 465", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "93 Ark. 155", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "90 Ark. 392", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "56 Ark. 221", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "82 Ark. 561", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "89 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515204 ], "opinion_index": 0, "case_paths": [ "/ark/89/0556-01" ] }, { "cite": "79 Ark. 393", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1495639 ], "opinion_index": 0, "case_paths": [ "/ark/79/0393-01" ] }, { "cite": "78 Ark. 148", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 } ], "analysis": { "cardinality": 632, "char_count": 15375, "ocr_confidence": 0.516, "pagerank": { "raw": 1.2793367584764035e-07, "percentile": 0.6171483356751687 }, "sha256": "aa569669d3a4747f05276194ccec37b745d295cf1b1a5a45392bb30369de6623", "simhash": "1:b8f241780bdf8c50", "word_count": 2706 }, "last_updated": "2023-07-14T17:21:43.572457+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Pekin Stave Company v. Ramey." ], "opinions": [ { "text": "Kirby, J.\nThis is the second appeal of this cause, which is sufficiently stated in the opinion rendered on the first appeal, reported in the 104 Ark. 1. 147 S. W. (Ark.) 83.\nThe court reversed the case because of an erroneous instruction, which was held, in effect, to be peremptory and amounting to a direction of the verdict, and said:\n\u201cFrom the testimony adduced at the trial, we are of the opinion that there was sufficient evidence to warrant a finding that the defendant was negligent in not exercising ordinary care to furnish a safe machine near which the defendant was directed to work by reason of its failure to supply it with an apron or shield in order to prevent the saw from hurling the blocks; or that the defendant was negligent in permitting the blocks to accumulate upon the floor to such a height as to fall upon the saw.\u201d\nIt also said the testimony was sufficient to warrant the jury in finding that the saw furnished was a reasonably safe instrumentality for performing the work and it was a question of fact for the jury to determine whether the defendant was negligent in permitting the blocks to accumulate near the saw as was done on this occasion.\nUpon the trial anew, virtually the same testimony was introduced as upon the former trial, the appellant objecting to a statement of the attorney for appellee that it, immediately after the accident and injury, provided a shield around the saw to prevent it coming in contact with blocks and occasioning injury such as occurred to appellee, and to the introduction of testimony relating thereto.\nIn the opening statement to the jury, appellee\u2019s counsel said: \u201cWe will show you, gentlemen of the jury, by their own testimony, by their own employees, it is not disputed or denied, never has been and I assume never will be, that this saw could have been protected at very small cost, of almost nothing; they did protect it immediately afterward.\u201d This was objected to, and the court said: \u201cYou can state what was done before the accident, but not afterwards.\u201d\nCounsel for appellee said further: \u201cThe proof will show, gentlemen of the jury, it has been repeatedly shown by witnesses and by the facts in the case, that within five minutes after he (Ramey) was hurt, they had at- no cost put a hood on it, fixed it, and since then they have never hurt a man by that saw.\u201d The court, on appellant\u2019s objection, said.to counsel, \u201cGro on,\u201d and to the jury, \u201cYou will not consider anything they did after-wards, but before-and at the time of the injury,\u201d without any further remark.\nThe appellant asked the court to exclude all the remarks of counsel in regard to placing the shield about the saw after the accident from the consideration of the jury and to instruct them not to consider it, to which the court said: \u201cGentlemen of the jury, that is just what I said before. * * * You are not to consider what they did did afterwards, but before it was on, at the time of the injury. \u2019 \u2019\nPI. S. Lacy testified that it was his duty to remove the blocks as they fell from the cut-off saw, where he was at work at the time of the injury. \u201cThere was a way to prevent the saw from throwing blocks. An apron put there would have shoved the blocks off to one side. An apron two and a half feet wide and four feet long would have been sufficient.\u201d Counsel then asked the witness if appellant did not put one there after the accident. This being objected to, and the objection sustained, counsel immediately said: \u201cI 'will ask you if they did not put one there within five minutes after Ramey was hurt? \u201cDo not answer.\u201d The court likewise sustained the objection. Counsel for the plaintiff then said: \u201cI want to ask if since then it has thrown any blocks, your honor, and want it written down and I will pass on,, write down. I want to ask if since that apron was put there, if it is a fact it has ever thrown a block.\u201d Upon objection, the court said: \u201cYou can show if it has not thrown any blocks since, you can show the reason why it has not.\u201d Objections were made and exceptions saved to this ruling. Counsel for appellee asked: \u201cState whether, or not, since Mr. Ramey got hurt, if there has ever been anybody else hurt by blocks thrown that way?\u201d To which the witness replied: \u201cNot to my knowledge,\u201d and upon being asked, \u201cWhy?\u201d said: \u201cBecause there was a shield to protect that.\u201d He then described the shield. \u2019 By counsel for appellee: \u201cTherefore, it could not throw blocks?\u201d A. \u201cThe saw could not pick up the blocks from underneath, because it could not get underneath the saw.\u201d\nAppellant moved to exclude this testimony, relating to the changed condition since the accident and its objections were overruled and exceptions saved.\nDuring the examination of F. M. Pittman, another witness for appellee, the following occurred:\n\u201cI worked there several weeks after that and did not see the saw throw any blocks.\u201d Upon objection, the court told the witness to answer, to which the witness replied, \u201cNo; I did not.\u201d Q. \u201cWhy did it not throw the blocks after that? Tell the jury why it did not?\u201d Counsel for the defendant objected to the question and objections were overruled and exceptions saved by the defendant. A. \u201cWell, there was a protection put there what is called an apron, put so the blocks could not get under the saw, could not drop under that, I suppose.\u201d Q. \u201cAll the time since, you never saw it throw any blocks.\u201d A. \u201cNo, sir; I never did.\u201d Counsel for defendant objected to the answer and asked that it be stricken from the record and the jury instructed not to consider it. The objection was overruled and exceptions saved.\nDuring the examination of Finis LeMay, another of the witnesses for appellee, the following occurred: \u201cI will ask you if that cut-off saw ever threw blocks at any time after that?\u201d Counsel for defendant: \u201cI object to the question.\u201d Court: \u201cAsk if he knows.\u201d \u201cQ. How long did you work after that?\u201d A. \u201cI worked about a year.\u201d Q. \u201cState whether or not in the year you worked at that saw it ever threw any more blocks?\u201d\nThe defendant objected to this testimony, the objections were overruled and exceptions were saved by the defendant. Q. \u201cDid it or not?\u201d Objected to, objections overruled by the court and defendant saved its exceptions. A. \u201cAfter that they put a sheathing on to keep it from throwing blocks. \u2019 \u2019 Counsel for defendant: \u201cI move that be stricken from the record.\u201d The court: \u201cOverruled.\u201d Exceptions were saved by the defendant to the ruling of the court.\nThis witness being recalled and asked again: \u201cState whether or not it could have thrown blocks after that?\u201d Objections being overruled and exceptions saved to this question, witness answered: \u201cNo; I don\u2019t think it could.\u201d\nThe court instructed the jury, giving instruction numbered 3 for the plaintiff, as follows:\n\u201cYou are instructed that the plaintiff assumed all the risks ordinarily incident to the work he undertook to do for the defendant, but not the risk of failure of defendant to do its duty,\u201d and declined to modify it at appellant\u2019s request, by adding the following:\n\u201cBut the plaintiff did assume the risks if he was aware of the condition of the machinery around which he worked and the perils and dangers incident thereto. \u2019 \u2019 Appellant also objected to two of the other instructions given and complains of the court\u2019s refusal to give several requested by it, among those one, numbered 4, as follows:\n\u201cThe jury is instructed that before the plaintiff can recover you must find that the negligence complained of was the proximate cause of the injury, and satisfying yourself in this respect you must believe that the injury was the natural and probable consequence of the negligence as alleged in plaintiff\u2019s complaint, and that the injury, if any, ought to have been foreseen in the light of the attending circumstances.\u201d\nThe jury returned a verdict against the appellant and from the judgment thereon it appealed.\nIt is contended for reversal that the court erred in permitting appellee to show that a shield or hood was placed about the saw to make its operation safer immediately after the injury to appellee and also in refusing to give appellant\u2019s requested instruction numbered 4, and in failing to modify, as requested, instruction numbered 3, given for appellee.\nIt has been repeatedly held by this court that it is prejudicial error to permit proof of the fact after the occurrence of an injury, that the manner of the operation of the appliance causing it was immediately changed or the defect remedied in order to show negligence of the master in furnishing it. St. Louis, I. M. & S. Ry. Co. v Steed, 105 Ark. 205; 151 S. W. (Ark.) 259; Prescott & N. Ry. Co. v. Smith, 70 Ark. 179; St. Louis S. W. Ry. Co. v. Plumlee, 78 Ark. 148; Fort Smith Traction Co. v. Soard, 79 Ark. 393; St. Louis, I. M. & S. Ry. Co. v. Walker, 89 Ark. 556; Bodcaw Lbr. Co. v. Ford, 82 Ark. 561.\nThis proof of the fact of putting a shield and apron about the saw after the injury occurred did not come out incidentally as in the Ford case, supra, but appears to have been the result of persistent effort on the part of appellee\u2019s counsel from the beginning of his opening statement to the conclusion of the introduction of testimony, finally resulting in the court allowing it to go to the jury. It can not be said that the evidence established, conclusively, negligence upon the part of the stave company in operating the cut-off saw unprotected by a shield or hood and this testimony was prejudicial and calls for r reversal of the case.\nAppellant\u2019s requested instruction numbered 4 was also a correct statement of the law and should have been given, but the case would not have been reversed for the court\u2019s failure to give it, alone.\nInstruction numbered 3 for appellee should have been modified as requested by appellant. The modification only tells the jury that the plaintiff assumed the risk if he was aware of the condition of the machinery around which he worked and the perils and dangers incident thereto.\nThe testimony shows conclusively that he knew the manner of the operation of the cut-off saw which was open and obvious; that he was a grown man of reasonable intelligence, and made no complaint about the operation of it without a shield or hood, and if the stave company was negligent in so operating it lie assumed the risk incident to its operation and could not hold the master liable for injuries received by Mm on account of its being operated without a hood. Emma Cotton Oil Co. v. Hale, 56 Ark. 221; St. Louis, I. M. & S. Ry. Co. v. Goins, 90 Ark. 392; Ark. Mid. Ry. Co. v. Worden, 90 Ark. 411; St. Louis, I. M. & S. Sy. Co. v. Wells, 93 Ark. 155; Mo. & N. A. Ry. Co. v. Van Zant, 100 Ark. 465; Asher v. Byrnes, 101 Ark. 201; Chicago Mill & Lbr. Co. v. Wells, 101 Ark. 537; Fullerton v. Henry Wrape Co., 105 Ark. 434; Ry. v. Edwards, 154 S. W. (Ark.), 209.\nOf course the appellee did not assume the risk of the negligence of the master in piling or allowing the blocks to aeoumlate about the cut-off saw to such an extent that it was liable to strike and throw them and produce the injury that did result, unless he was aware of such negligence and appreciated the danger arising therefrom or incident thereto, as this modification told the jury. Asher v. Byrnes, 101 Ark. 201.\nThe court erred in refusing to modify the instruction as requested.\nInstruction numbered 4, relating to the assessment of damages, is open to the objection that it seems to assume that appellee\u2019s injury is permanent, but it could and would have been corrected if a specific objection had been made. It will doubtless not be given in the same form upon the trial anew.\nFor the errors designated, the judgment is reversed and the cause remanded for a new trial.", "type": "majority", "author": "Kirby, J." } ], "attorneys": [ "T. D. Wynne and Garner Fraser, for appellant.", "E. G. Mitchell and Guy L. Trimble, for appellee." ], "corrections": "", "head_matter": "Pekin Stave Company v. Ramey.\nOpinion delivered June 9, 1913.\n1. Master and servant \u2014 negligence\u2014subsequent repairs as evidence. \u2014In an action against a master for an injury to a servant, it is prejudicial error to permit proof that the manner of the operation of the appliance causing the injury was immediately changed or the defect remedied, in order to show negligence in the master. (Page 489.)\n2. Appeal and error \u2014 prejudicial error. \u2014 In an action against a mas- . ter for injury to a servant, the admission of evidence that a shield was placed about the saw which injured plaintiff, after the injury, drawn out by plaintiff\u2019s counsel after persistent effort, is a reversible error. (Page 489.)\n3. Master and servant \u2014 injury to servant \u2014 liability.\u2014A servant can recover damages for injuries received through the negligence of the master only when the negligence complained of is the proximate cause of the injury, and that the injury ought to have been foreseen in the light of attending circumstances. (Page 489.)\n4. Master and servant \u2014 injury to servant \u2014 assumption oe risk.\u2014 Where a servant operates an unguarded saw without any objection, he assumes the risks attendant thereon, but he does not assume the risk of injury from blocks thrown by the saw, caused by the master\u2019s negligence, unless he was aware of the negligence and appreciated the danger. (Page 489.)\n5. Instructions \u2014 assumption of a fact. \u2014 An instruction on the assessment of damages in a suit for personal injuries is erroneous when it assumes that the plaintiff\u2019s injury is permanent. (Page 496.)\nAppeal from Van Bur\u00e9n Circuit Court; George W. Reed, Judge;\nreversed.\nT. D. Wynne and Garner Fraser, for appellant.\n1. It was obvious error to allow counsel for appellee in bis opening statement to impress upon tbe minds of tbe jury tbe fact that a bood or apron had been placed about tbe saw immediately after tbe accident, and after-wards on tbe trial to bring out testimony to prove that fact. 70 Ark. 182; 78 Ark. 148, syllabus 7; 79 Ark. 393; 89 Ark. 556; 82 Ark. 561.\n2. Tbe modification requested by appellant of tbe court\u2019s instruction 3 is elementary law and was fully warranted by the evidence. It should have been given. 56 Ark. 221; 90 Ark. 392; Id. 411; 93 Ark. 155; 95 Ark. 564; 100 Ark. 465; 101 Ark. 201; Id. 537; 32 Ark. 722.\n3. Instruction 4, given at appellee\u2019s request, erred in assuming, without proof, that appellee was getting wages, and in assuming that his injuries were permanent, which was a matter in dispute.\n4. The court erred in refusing appellant\u2019s request to instruct the jury in effect that they should indulge the presumption that the defendant exercised due care until the contrary was shown by a preponderance of the evidence; that it did not insure nor guarantee plaintiff against injuries, that they should not assume negligence on the part of defendant merely from the happening of the accident, and that it was not liable unless the negligence complained of was the proximate cause of the injury, and the latter the natural and probable consequence of that negligence.\nE. G. Mitchell and Guy L. Trimble, for appellee.\n1. The jury were clearly instructed by the court not to consider statements with reference to what occurred after the accident. 70 Ark. 183; 89 Ark. 562.\n2. Appellant\u2019s objection to instruction 4 was general, and not sufficient to call the court\u2019s attention to any specific reason for \u25a0 changing its phraseology. 98 Ark. 353; 98 Ark. 425; Id. 211; Id. 227. But, as drawn, the instruction does not assume permanent injury.\n3. It was not error to refuse to modify instruction 3, as requested. 101 Ark. 201." }, "file_name": "0483-01", "first_page_order": 503, "last_page_order": 510 }