Barnes v. Fernandez
| Decision Date | 04 October 1974 |
| Docket Number | No. 4331,4331 |
| Citation | 526 P.2d 983 |
| Parties | DuWayne BARNES, Appellant (Plaintiff below), v. Genaro FERNANDEZ and Jay Brown, Appellees (Defendants below). |
| Court | Wyoming Supreme Court |
David D. Uchner, Lathrop, Uchner & Mullikin, Cheyenne, for appellant.
Bard Ferrall, Cheyenne, for appellees.
Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE and McCLINTOCK, JJ.
This is an appeal from that portion of a judgment upon a directed verdict in favor of the defendant Jay Brown. He was the owner of a truck with which the plaintiff's automobile collided and was also the employer of the defendant Fernandez, who was the operator of the truck at the time of the accident. The plaintiff sustained extensive personal injuries and the jury returned a verdict in his favor and against the defendant Fernandez in the sum of $64,677.46. The basis for the defendant Brown's motion for directed verdict was that the defendant Fernandez, his employee, was not engaged upon the business of, or upon the direction of, his master at the time of the accident.
We reverse and remand the matter because the question of whether the defendant Fernandez was upon the business of his employer was a question of fact to be determined by the jury.
On the date of the accident, Fernandez was working for the defendant Jay Brown, who operated ranching and farming lands near Pine Bluffs, Wyoming, and had been so employed for about eight months. The collision occurred on a state service road paralleling Interstate 80 approximately six miles west of Pine Bluffs at approximately 9:45 p. m. on June 30, 1971. Fernandez was paid $1.70 per hour and was furnished a house in which he and his wife lived. He was a Mexican national who did not speak English and his testimony, taken through an interpreter, was presented upon deposition. His duties on the farm included changing pipes on the irrigation system between various fields. When he couldn't irrigate he would sack potatoes, hoe, and perform other general duties. Brown furnished a 1945 International truck to Fernandez to be used by him in his irrigation duties. The truck was not licensed and it had no lights. On the morning of the accident Brown, assisted by Fernandez, moved some sheep which belonged to Brown from one area near where Fernandez lived to another place owned by Brown about one mile up the same road upon which the accident subsequently happened. That evening, when Fernandez returned from his irrigation work, he noticed that two lambs had been left. He was fearful that coyotes would get the lambs if they stayed where they were. One of the reasons that the sheep had been moved was the coyote threat to the lambs. He was able to catch only one of the lambs, which he had his wife hold on her lap while he drove the truck to the place where the other sheep had been taken that morning. Upon placing the lamb with the other sheep he proceeded to return to his place in a westerly direction upon the public highway when the truck stalled. He left the truck partially upon the west traveled portion of the highway and he and his wife walked to their house and returned in the Fernandez car to the stalled truck. They attempted to park their car so that its lights would reveal the presence of the truck to other motorists, but before they could place their car to the rear of the truck the plaintiff, proceeding in a westerly direction, being the same direction in which the truck had been proceeding, struck the rear of the truck and received the injuries of which he complains.
While the defendant Brown and Fernandez' wife testified that Fernandez had been told not to drive the truck upon the highway, Fernandez did not recall having been so told. The instructions in this regard were relayed from Brown to Fernandez through his wife as interpreter because Fernandez did not speak or understand English. According to Brown, Fernandez was permitted to drive the truck across the highway because there were fields which he was to irrigate upon both sides of the public road. Even assuming that the jury would have concluded that Fernandez was instructed to not drive the truck upon the highway it could have still concluded that under the circumstances Fernandez was upon the business of his...
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