108 F.2d 848 (8th Cir. 1940), 11536, Duncan v. Montgomery Ward & Co.

Docket Nº11536.
Citation108 F.2d 848
Party NameDUNCAN v. MONTGOMERY WARD & CO.
Case DateJanuary 23, 1940
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 848

108 F.2d 848 (8th Cir. 1940)

DUNCAN

v.

MONTGOMERY WARD & CO.

No. 11536.

United States Court of Appeals, Eighth Circuit.

Jan 23, 1940

Rehearing Denied February 12, 1940.

Page 849

[Copyrighted Material Omitted]

Page 850

Kenneth W. Coulter and Edward H. Coulter, both of Little Rock, Ark. (O. W. Wiggins, of Little Rock, Ark., on the brief), for appellant.

Frank E. Chowning, of Little Rock, Ark. (L. E. Oliphant, Jr., of Chicago, Ill., and J. Merrick Moore and Lawrence B. Burrow, both of Little Rock, Ark., on the brief), for appellee.

Before STONE, SANBORN, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

This is an action for damages for personal injuries by a servant against his master. The injury complained of was alleged to be the proximate result of the negligence of a fellow servant. The action is based upon section 9123 of Pope's Digest of the Statutes of Arkansas which declares that all corporations shall be liable in damages for injuries sustained by an employee resulting from the negligence of a fellow employee.

At the close of all the evidence the defendant moved for a directed verdict, which was denied, and the jury returned a verdict in favor of the plaintiff for $16,500 on which a judgment was entered the same day. Within 10 days thereafter the defendant moved for judgment in accordance with its motion for a directed verdict and prayed for a new trial in the alternative pursuant to the provisions of Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c. The court granted the motion and ordered that the verdict and judgment previously entered be set aside, entered judgment for the defendant 'in accordance with its motion for a directed verdict and notwithstanding the aforesaid verdict', and for costs. From this order and judgment the plaintiff appeals.

On this appeal these questions only are presented: 1. (a) Was Jake Jackson, appellant's co-employee, guilty of negligence (b) which was the proximate cause of the injury complained of? and 2. Is appellant barred from recovery by the doctrine of assumed risk? All other contentions of appellant, except the procedural question hereinafter noted, are conceded by counsel for appellee.

In answer to the first question appellant says (1) that the point was not properly raised in the motion for a directed verdict and (2) that in any event under the evidence this was a question for the jury. As to the second question the appellant says that the doctrine of assumed risk has no application to the case made by the pleadings and the evidence.

The material parts of defendant's motion for a directed verdict are as follows:

'First: The evidence introduced by plaintiff is insufficient to make a prima facie case and fails to establish the relation of employer and employee as between the defendant and Jack Jackson.

'Second: The evidence considered in its most favorable light on behalf of the plaintiff is insufficient to support any verdict that might be rendered the plaintiff against the defendant.

'Third: The evidence shows as a matter of law that the injury sustained by plaintiff, if any, on June 27, 1938, was the result of one of the ordinary risks and hazards of his employment which was open and obvious and known to and appreciated by him, and assumed by him as a part of his employment.

'Fifth: That the plaintiff has failed to prove by a preponderance of the evidence that he was injured in the manner alleged in his complaint, and that if injured, that he was injured by any negligent act or acts on the part of Jake Jackson.'

Rule 50(a) of the Rules of Civil Procedure provides that 'A motion for a

Page 851

directed verdict shall state the specific grounds therefor. ' Of the grounds of the motion for a directed verdict in this case the fifth is the only one which specifically refers to the alleged negligent act of Jake Jackson, and it does not present a question of law calling for the decision of the court. It charges that the 'Plaintiff has failed to prove by a preponderance of the evidence that he was injured in the manner alleged', etc. The matter of the 'preponderance of the evidence' is a jury question, and not a law question.

The appellee contends that the first and second grounds of the motion are sufficiently specific to satisfy the requirements of Rule 50(a). These grounds in brief allege that the evidence 'is insufficient to support any verdict that might be rendered the plaintiff against the defendant. ' Assuming without deciding that this is sufficiently specific under the rule to charge that the evidence is insufficient to go to the jury on the question of whether or not Jake Jackson committed the negligent act complained of or, if he did, that that act was the proximate cause of the alleged injury, we think the court erred in sustaining it.

The jurisdiction of the federal court is based upon diversity of citizenship; and the question here presented is controlled by the law of Arkansas. The application of the Arkansas law requires a brief statement of the pertinent facts.

The complaint alleges that plaintiff and his co-employee, Jake Jackson, were ordered by their employer, the defendant, to deliver an ice box weighing in excess of 400 pounds; that while in the act of lowering the ice box from the rear of the truck on which it was transported to the delivery platform Jackson suddenly, negligently and without warning raised his side of the box, thereby throwing practically the entire weight on the box on plaintiff, then in a hazardous position, resulting in the serious injury for which damage is sought.

The evidence disclosed that for the purpose of unloading the ice box, which weighed between 350 and 450 pounds, plaintiff and Jackson backed the truck up to the unloading platform and let down the rear end gate, which projected about three feet over the edge of the platform and was 10 or 12 inches above the platform floor. They had delivered several such boxes; and in so doing they had always called signals to each other and Jackson had always observed such signals. In carrying the ice box from the front end of the truck Jackson, facing the rear of the truck, grasped the bottom of the box, and plaintiff took hold of the opposite side in a similar way and walked backward to the rear of the truck. They could not see each other as they proceeded. Having taken hold of the box, plaintiff called 'Alright', and they attempted to carry...

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16 practice notes
  • 202 S.E.2d 585 (N.C. 1974), 49, Anderson v. Butler
    • United States
    • North Carolina Supreme Court of North Carolina
    • 25 Febrero 1974
    ...187 F.2d 844 (8th Cir. 1951); Atlantic Greyhound Corp. v. McDonald, 125 F.2d 849 (4th Cir. 1942); Duncan v. Montgomery Ward & Co., 108 F.2d 848 (8th Cir. 1940); Wright & Miller, Federal Practice and Procedure: Civil § 2533. Our Court of Appeals has adopted the Federal construction. ......
  • 102 F.Supp. 354 (E.D.Ark. 1951), B-207, Continental Grain Co. v. Simpson Feed Co.
    • United States
    • Federal Cases United States District Courts 8th Circuit Eastern District of Arkansas
    • 17 Diciembre 1951
    ...the defendant in refusing further performance, the plaintiff's motion should be denied. Duncan v. Montgomery Ward & Co., 8 Cir., 108 F.2d 848; Jones v. United States, 8 Cir., 112 F.2d 282; Johnson et al. v. J. H. Yost Lumber Co., et al., 8 Cir., 117 F.2d 53; Brinegar v. Green, 8 Cir., 1......
  • 303 P.2d 261 (Ariz. 1956), 6017, Zugsmith v. Mullins
    • United States
    • Arizona Supreme Court of Arizona
    • 30 Octubre 1956
    ...denied. Notes: [1] Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 250, 61 S.Ct. 189, 194, 85 L.Ed. 147, modifying 8 Cir., 1940, 108 F.2d 848, noted in (1941) 29 Calif.L.Rev. 247, 41 Col.L.Rev. 502, 9 Geo.Wash.L.Rev. 619, 54 Harv.L.Rev. 694, 14 So. Calif.L.Rev. 198, 27 Va.L.Rev. 70......
  • 40 N.W.2d 252 (Neb. 1949), 32594, Krepcik v. Interstate Transit Lines
    • United States
    • Nebraska Supreme Court of Nebraska
    • 12 Diciembre 1949
    ...896; Marsh v. Illinois Cent. R. R. Co., 5 Cir., 175 F.2d 498. The exception is Duncan v. Montgomery Ward & Co., 8 Cir., [152 Neb. 52] 108 F.2d 848, and this case in this respect was overruled in Montgomery Ward & Co. v. Duncan, supra. All of these cases make clear the further propos......
  • Request a trial to view additional results
16 cases
  • 303 P.2d 261 (Ariz. 1956), 6017, Zugsmith v. Mullins
    • United States
    • Arizona Supreme Court of Arizona
    • 30 Octubre 1956
    ...denied. Notes: [1] Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 250, 61 S.Ct. 189, 194, 85 L.Ed. 147, modifying 8 Cir., 1940, 108 F.2d 848, noted in (1941) 29 Calif.L.Rev. 247, 41 Col.L.Rev. 502, 9 Geo.Wash.L.Rev. 619, 54 Harv.L.Rev. 694, 14 So. Calif.L.Rev. 198, 27 Va.L.Rev. 70......
  • 40 N.W.2d 252 (Neb. 1949), 32594, Krepcik v. Interstate Transit Lines
    • United States
    • Nebraska Supreme Court of Nebraska
    • 12 Diciembre 1949
    ...896; Marsh v. Illinois Cent. R. R. Co., 5 Cir., 175 F.2d 498. The exception is Duncan v. Montgomery Ward & Co., 8 Cir., [152 Neb. 52] 108 F.2d 848, and this case in this respect was overruled in Montgomery Ward & Co. v. Duncan, supra. All of these cases make clear the further propos......
  • 102 F.Supp. 354 (E.D.Ark. 1951), B-207, Continental Grain Co. v. Simpson Feed Co.
    • United States
    • Federal Cases United States District Courts 8th Circuit Eastern District of Arkansas
    • 17 Diciembre 1951
    ...the defendant in refusing further performance, the plaintiff's motion should be denied. Duncan v. Montgomery Ward & Co., 8 Cir., 108 F.2d 848; Jones v. United States, 8 Cir., 112 F.2d 282; Johnson et al. v. J. H. Yost Lumber Co., et al., 8 Cir., 117 F.2d 53; Brinegar v. Green, 8 Cir., 1......
  • 202 S.E.2d 585 (N.C. 1974), 49, Anderson v. Butler
    • United States
    • North Carolina Supreme Court of North Carolina
    • 25 Febrero 1974
    ...187 F.2d 844 (8th Cir. 1951); Atlantic Greyhound Corp. v. McDonald, 125 F.2d 849 (4th Cir. 1942); Duncan v. Montgomery Ward & Co., 108 F.2d 848 (8th Cir. 1940); Wright & Miller, Federal Practice and Procedure: Civil § 2533. Our Court of Appeals has adopted the Federal construction. ......
  • Request a trial to view additional results