Ben M. Hogan & Co. v. Krug
| Decision Date | 04 December 1961 |
| Docket Number | No. 5-2549,5-2549 |
| Citation | 351 S.W.2d 451,234 Ark. 280 |
| Parties | BEN M. HOGAN & COMPANY, Appellant, v. Eugenia KRUG et al., Appellees. |
| Court | Arkansas Supreme Court |
Wright, Lindsey, Jennings, Lester & Shults, Little Rock, for appellant.
Catlett & Hunderson, Little Rock, for appellees.
The appellant, Ben M. Hogan & Company, is a partnership which occupied a piece of leased ground in Pulaski County at the intersection of two County Roads which are known as the Carmichael Road and the County Line Road. The Carmichael Road runs east and west and the County Line Road runs north and south. Upon the leased premises the appellant had for more than eight months prior to June 11, 1960, operated a gravel business where it crushed, assembled and maintained a stockpile of gravel which was from 25 to 30 feet high and, according to some witnesses, extended west from within three or four feet of the western edge of the County Line Road for approximately 100 feet.
From this business and stockpile of the appellant, Fred R. Rood, who was a defendant in this action, was engaged in the business of hauling gravel from the appellant's location. The operation of Rood was that of an independent contractor, independent of the appellant. Among other employees of Rood was a truck driver, one R. G. McNeeley, who was also a defendant in this case in the lower court.
There was an exit road from the property occupied by the appellant that divided into two prongs shortly before its junction with the County Line Road. The plan of operation of the appellant's business seems to have been that whenever it was planned to load a truck, the operator of the blender or loading plant would sound one blast of a whistle. When the truck was loaded, two blasts were sounded and the truck would then move out from the loading station.
When the loaded truck moved out from the Hogan loading point, Rood and the driver were on their own and moved without direction or control of the appellant. While operating upon this line of procedure, McNeely moved away from the loading station and taking a fork in the exit road, which had been suggested by Hogan's employees as a means of avoiding a mudhole in the County Line Road, McNeeley drove his truck upon the County Line Road where it struck a car driven by Mrs. Lea Nevin, the impact of the collision being such that Mrs. Nevin, Larry Krug and Mrs. Eugenia Krug, the occupants of the car and appellees here, were gravely injured.
To recover damages for their injuries the appellees filed their complaint in the Pulaski Circuit Court against Hogan, Fred Rood and R. G. McNeeley, alleging Rood and McNeeley were negligent in operating the truck and semi-trailer at an excessive rate of speed, failure to keep a proper lookout for persons and property rightfully using the County Road; failure to keep the truck and trailer under proper control; failure to stop the truck and trailer before entering a public highway, and failure to yield the right-of-way to the automobile operated by Lea Nevin.
As against the appellant, Hogan, negligence is asserted in the following items: The assembling and maintaining of a stockpile of gravel 25' high and 35' wide extending from a point 40' west of the road up to the boundary of the road which completely obstructed and cut off the view of the appellee and prevented her from seeing the Rood and McNeeley truck; that Hogan had failed to cut and remove trees, bushes and vines which had grown on the leased property of the appellant in such a manner that it had obstructed appellee's view to the west and prevented her from seeing the Rood-McNeeley truck and trailer; that the appellant had negligently failed to maintain a guard or flagman where the haul road intersects the County Line Road; that it further negligently failed to erect and maintain a sign, signal or other device of any kind, character or description to warn operators of vehicles on such road of the intersection of the haul road and the County Line Road; failed to erect and maintain signs, signals or other devices along the County Line Road that trucks or other vehicles were operating on the haul road which intersects the County Line Road; that the appellant had further negligently failed to warn and instruct other persons hauling of the operation of the gravel plant as to the danger in driving onto the highway without first stopping to ascertain that such move could be made safely.
Prior to the calling of the case for trial the appellees dismissed their complaint as to Fred R. Rood and R. G. McNeeley, the dismissal being with prejudice as to these defendants but expressly reserving their action as to the defendant Hogan. At the hearing on the motion to dismiss as to Rood and McNeely there were introduced covenants not to sue executed by the appellees. A number of points are argued by the appellant for a reversal of the judgment found against it by the Pulaski County Jury in this case but for the reasons hereinafter stated we find it necessary to consider but one here.
Considering first the allegations of negligence against the appellant for failure to maintain a guard or flagman near the point of intersection of the haul road and the County Line Road; to erect and maintain signs and signals to inform operators of vehicles on the County Line Road of the operation of the gravel plant and the exit from the gravel property over the haul road; failure to warn and instruct the haulers from the gravel property of the danger of driving onto the highway before first stopping to ascertain that the move could be safely made, it is clear from the record before us that the operation of Rood and McNeeley was independent of Hogan in every respect and that when the Rood trucks had been loaded and moved away from Hogan's plant, Hogan's entire connection with the truck and its load was severed in every way. There was approximately 100' between the loading plant and the County Line Road. The loaded trucks could have stopped at any point therein and never gone onto the County Line Road as far as Hogan was concerned. McNeeley, being Rood's employee and not Hogan's, no duty devolved on Hogan to instruct him in the manner in which he should operate the truck.
Neither does it appear that there existed any necessity for Hogan to leave his own premises for any purpose. So far as we know, Hogan's use of the County Line Road was but casual and since he was not hauling over it as a part of his business, we fail to see where any duty devolved on him to place a guard or warning signs or devices of any kind. If such a duty devolved on any person it was on Rood who was the one making use of the road. We find no merit in these allegations of negligence.
That brings us to a consideration as to whether or not the appellant was negligent in maintaining on its property a gravel pile which it is alleged obscured the vision of the appellee as she drove the car toward the intersection of the haul road and the County Line Road where the accident occurred. This lessening of her sight distance by the gravel pile and the presence of growth of various kinds is alleged by the appellees to have brought about the accident.
The piling of the gravel on his own property by Hogan was not of itself negligent and the only time that the gravel itself could have brought about an injury would have been if Hogan had negligently piled it on the County Road in such a way that a car might strike it or had it been stacked so close to the County Road that part of it had sloughed off and damaged vehicles or persons on the County Road. So far as the gravel piling is concerned, it could have remained in that spot at that height indefinitely without causing any damage. Therefore it cannot in any way be said that the gravel pile was of itself the proximate cause of the injuries of which the appellees complain.
The law in this cause is stated in Arkansas Law Review, Vol. 1, p. 152, as follows:
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