F. G. LANE and ED HAYES, co-partners, Appellants,
S. A. GREER, Appellee
APPEAL from a judgment of the Superior Court of the County of Pinal. Dudley W. Windes, Judge. Judgment reversed.
Messrs. Sullivan & Sullivan, for Appellant Hayes.
Mr. George F. Senner, for Appellant Lane.
Mr. Tom Fulbright, for Appellee.
This is an action brought by the appellee in the Superior Court of Pinal County. He alleges that on the 10th day of November, 1941, while he was employed by the appellants at the Pearl Mine, some nine miles from Mammoth, Pinal County, Arizona, as a laborer and a cook, he was injured through the negligence of appellants in having to use a certain [61 Ariz. 2] miner's timbering ax with a handle which was some eight inches shorter than the usual chopping ax when he was cutting wood for purposes necessary in and about the cook house of the mine; that the handle of the said ax had a knob to prevent its slipping through the hands when used for wood cutting; that the said ax was of the approximate weight of five pounds, and being also too heavy for use for such purposes, all of which caused said ax to be dangerous to life and limb when so in use; that in the course of his employment, while obligated to use said ax for the cutting of wood, as he brought the ax down from above his head with a heavy stroke, the handle thereof slipped through the left hand of the plaintiff and the blade of said ax struck plaintiff's right toe, splitting said toe and the bone thereof to the instep.
The appellee, as plaintiff, complained that he was damaged for severe nervous shock and extreme pain; by the incurring of large expenses for hospitalization, surgical and medical attention which would continue to be incurred; by lasting injuries of such character that would prevent him from doing his accustomed work hereafter and that he had been deprived of earning his accustomed wages in the amount of $5 per day from the date of said accident; that he asked for damages in the sum of $3,500. A jury in the case returned a verdict for $1,500.
Each of the defendants herein filed separate answers. The appellant Lane, who was one of the defendants below, denied generally the allegations of the appellee's complaint, and alleged that if he was so injured that the injuries were directly and proximately caused by the sole negligence of himself; that he failed and neglected to exercise reasonable care and caution, or any care and caution whatsoever, for his own safety; that said negligence contributed to and [61 Ariz. 3] was the proximate cause of the injuries. And, further alleged that if the plaintiff was injured, as alleged, resulting from or contributed to by any conditions of tools of equipment, then that the plaintiff used said tools and equipment with the full knowledge of said conditions, and all risk incident thereto, and willingly and knowingly assumed the risk thereof.
The defendant Hayes denied the whole of the complaint of the appellee, and denies that the injury complained of, if any, was caused by an act or omission of defendant, Ed Hayes, or of any servant or employee of defendant, and alleges that such injury and resulting damage, if any, was the direct and proximate result of the negligence of appellee; that plaintiff neglected to use any care or caution for his own safety and that such negligence of plaintiff was the sole and proximate cause of the injury.
Appellants submitted no assignments of error, but as we see the case, the following issues are to be determined: First: Was there employment? Second: Did the injury occur while in the course of employment? Third: Was there negligence,
if employed? Fourth: Was the verdict excessive?
This whole case hinges on the subject of employment. Naturally if the appellee wasn't employed, we do not need to enter into the other matters. We have given a great deal of attention to the case ...