Berry Asphalt Company v. Kidd

143 S.W.2d 42, 200 Ark. 1121, 1940 Ark. LEXIS 183
CourtSupreme Court of Arkansas
DecidedJuly 8, 1940
Docket4-6025
StatusPublished
Cited by2 cases

This text of 143 S.W.2d 42 (Berry Asphalt Company v. Kidd) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berry Asphalt Company v. Kidd, 143 S.W.2d 42, 200 Ark. 1121, 1940 Ark. LEXIS 183 (Ark. 1940).

Opinion

■Smith, J.

Appellee recovered a judgment for $11,000 to compensate a personal injury, and its reversal is prayed, upon this appeal therefrom, on three grounds: (a) that the testimony is insufficient to support the verdict; (b) that the court erred in giving, over appellants’ objection, an instruction numbered 1; and (c) that the verdict is excessive.

The testimony may be summarized as follows: Appellee was 39 years of age at the time of his injury. He had at one time operated a blacksmith shop, in which an acetylene torch was used for welding purposes. He did woodwork only, and was not a blacksmith, and “never worked with steel and iron, except what they fixed on the forge to pnt on wagons.” He was employed by appellant, Berry Asphalt Company, in January, 1939, and he first “worked out in the field.” On the day of his injury he was told to assist one Carpenter in the operation of a welding machine where flues were being welded to place in a boiler. He was told to hold the pipes in position which were being welded, and he held them at arms’ length from the point of electrical contact. Carpenter “had an outfit to go over his face.” Appellants had goggles, a pair of which appellee might have used, but nothing was said to him about using goggles. He did not know anything about the goggles or that he was supposed to use them. Appellee had never worked about an electric welding machine before, and did not know that his eyes would be burned if he did not use goggles.

Appellee worked all of one day and a part of the next. At the end of the first day his eyes were “bothering” him. The pain grew worse, and his eyes became swollen and red, and about nine o ’clock that night he was carried to appellant’s doctor who gave him treatment which afforded but little relief, and his wife made a potato poultice, which was placed over his eyes. About eight o’clock the next morning he went to see his own physician who had been called away on a case. He saw Dr. G-ee the following day, and for three or four days later, when he went to see Dr. McDonald at Hope who treated him for about a month and until Dr. McDonald was killed in an automobile wreck.

He returned to the work of assisting the welder the day following and worked until about 10 a. m. He was then furnished and told to use a pair of goggles, and continued to use them while so employed during the remainder of his employment, a period of about four days.

It appears, from what has been said, that the theory upon which appellee sought compensation for his injury is that he was an inexperienced servant unaware of the danger of his employment, and that he was put in a dangerous employment without warning and without being supplied with goggles or other protection.

The testimony was to the effect that specially prepared goggles were usually furnished by the operators of electric welding machines to the employees assisting the welder; but appellee was unaware of that fact, and was ignorant of the danger incident to the employment about such machines without this protection.

It is insisted that appellee was aware of this danger, and would have been supplied with goggles had he asked for them. He admitted that an acetylene torch had been used in welding in his blacksmith shop, but, as has been said, appellee testified that he was not the user of the torch employed in his shop, which was a small torch.

J. T. Mendenhall, an instructor of a class in welding in the State A. & M. College at Monticello, testified that he was a welder by profession, and that it was a highly specialized trade, in which wages of from $1.10 to $1.25 per hour were paid. He explained the difference between acetylene torches and electric arcs used in welding. The acetylene torch threw off a bright light which was generated by great heat. It was not used for welding heavy stuff, while anything that can be welded may be welded with an arc or electric welder. The electric welder throws off ultra violet rays and infra red rays. These will burn the eyes, while the rays from the acetylene torch will not. He stated that electric welders were usually furnished a shield which covered the face, while the helper is usually furnished goggles having an arc-proof lens in them. The users of acetylene torches are required to use only colored lens. The witness further testified that a person who had never done any electric welding would not know what was hurting his eyes.

An eye specialist, testifying as an expert on behalf of appellant, was asked: “Q. Then the first exposure to that light would hurt the man and he couldn’t look at it? A. It wouldn’t cause what we call pain — the pain wouldn’t come right away, all the electric opthalmia would be afterwards. Q. How long afterwards? A. From two or three to twelve hours.”

We think this testimony presented the question whether appellee was an inexperienced servant, who had been pnt to work in a dangerous employment without instruction or warning, and this issue was submitted to the jury in an instruction in which the law was stated to be that if appellee “knew and appreciated the risks and dangers incident to. working around the welding torches without goggles or shields for his eyes, then you are told no duty devolved upon Berry Asphalt Company, or Harry Miller (appellants), to warn him with reference to such dangers.” Appellants had no right to ask a more favorable instruction upon this question.

We think the testimony also required the submission to the jury of the question whether the master was negligent in his duty to furnish appellee a reasonably safe place in which, and reasonably safe appliances with which, to work. This question was submitted to the jury in an instruction numbered 1 reading as follows:

“The jury is instructed that it is the duty of the master to furnish to the servant a reasonably safe place in which to work and reasonably safe appliances with which to work. Therefore, you are instructed that if you find from a preponderance of the evidence in this case that in January, 1939, the plaintiff, R. L. Kidd, Jr., was in the employ of the defendant, Berry Asphalt Company, at its place in Nevada county, Arkansas, as charged in his complaint; and you further find from a preponderance of the evidence that Harry Miller was in the employ of the Berry Asphalt Company, whose duty it was to direct this plaintiff about his work, and you further find from a preponderance of the evidence in this case, that the defendants, Berry Asphalt Company and Harry Miller, ordered and directed the plaintiff, R. L.

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Cite This Page — Counsel Stack

Bluebook (online)
143 S.W.2d 42, 200 Ark. 1121, 1940 Ark. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-asphalt-company-v-kidd-ark-1940.