Carson v. Dierks Lumber & Coal Co.

• Decision Date: 25 April 1938
• Docket Number: 4-5043
• Citation: 117 S.W.2d 39,196 Ark. 163
• Parties: CARSON v. DIERKS LUMBER & COAL COMPANY
• Court: Arkansas Supreme Court

117 S.W.2d 39

196 Ark. 163

CARSON v. DIERKS LUMBER & COAL COMPANY

4-5043

Supreme Court of Arkansas

April 25, 1938

Appeal from Garland Circuit Court; Earl Witt, Judge; reversed.

Judgment reversed and cause remanded.

Earl J Lane and Leo P. McLaughlin, for appellant.

Watson Ess, Groner, Barnett & Whittaker and Murphy & Wood, for appellee.

OPINION

MEHAFFY, J.

This suit was instituted in the Garland circuit court by the appellant, Jim Carson, against the Dierks Lumber & Coal Company to recover damages for injuries sustained on September 20, 1936. He alleged that he was employed by the appellee as a truck driver for the purpose of hauling logs to appellee's mill at Dierks, Arkansas; that the road over which he was driving was under the control and supervision of the appellee, and that it was the duty of the appellee to keep said road and bridges in good repair; that appellee employed a crew at all times to keep said road and bridges in repair, and that it was negligent in failing to keep said bridge in repair, and as the result of such negligence appellant was seriously injured and damaged in the sum of $ 3,000.

The appellee filed answer, denying all the material allegations in the complaint and pleading contributory negligence, and that appellant assumed the risk.

After the evidence was introduced, the court directed the jury to return a verdict in favor of appellee. The jury returned a verdict as directed by the court, and judgment was entered in favor of appellee. From that judgment comes this appeal.

The appellant testified that he had worked for the Dierks Lumber & Coal Company for about three years driving a truck and hauling logs; that he was hauling logs on September 20, 1936, from Bluff Springs to Dierks; that appellee's mill is located at Dierks; September 20, 1936, was the first day that he had hauled logs over the road from Bluff Springs to Dierks; he had been hauling over other roads; the road foreman for the appellee was Omer Hethcock; he kept the bridges in shape and the road in shape to travel over; the day that appellant was injured he passed over the bridge and saw there was a slight sand hole and the bridge was slightly sunk; when he got to Center Point about 10:15 or 10:30, he stopped and saw Omer Hethcock, the bridge foreman, and told him about that bridge; that it needed to be fixed, and that if it was not fixed somebody would get hurt; the foreman told him that it would be fixed before he got another load; he promised that it would be fixed. On his third trip to the loading place he was driving about 20 miles an hour; when he went over the hill he thought the bridge was in about the same fix that it was in the morning; when he hit the bridge the trucks had about finished breaking the boards in; the front wheels of the truck hit this hole and dropped down. The appellant then describes at length the accident and the extent of his injuries.

On cross-examination appellant testified that he did not know whether it would be called a public road or not; he thought the bridge was about six feet across; he would call it a large culvert; he could get over it all right; after he had gone over it four times, it looked like it was sagging, but he thought he could get over it all right; there was sand in the bridge and it had been filled over with dirt and was caving in; the foreman told him he would get it fixed before he could get another load across; he did not expect the foreman to get it completely fixed before he got back; he could have fixed a detour around it very easily by the time he got back; the break in the board was a fresh break and he got right on it before he saw it. He then testified about making a statement, but he did not read the statement; the lawyer just told him to sign it.

Omer Hethcock testified that he had been working for the Dierks company 18 or 20 years and that his last job was road foreman where it was his duty to keep any roads that the company's trucks traveled over in good condition; he had to fix bridges and put up signs; he was working for appellee when Carson was injured; about 10:30 in the morning Carson saw him at Center Point and told him about the bridge, and he told Carson that he would go and see about it right now; he had fixed other bridges and put up signs on this particular road; Homer Byers, assistant woods foreman, who was witness' superior, told him to do this work; when bridges got in bad shape he would always tell Homer about it and told him about this bridge and told him that he ought to go out and put a plank in the bridge and Byers told him to go to some other place and put up signs; he saw the bridge after the accident and fixed it afterwards; lie knew the plank had been broken three or four days, but he told Carson he would go and fix it; witness continued to work for the lumber company until January, 1937, when he was fired. He testified that he saw the plank was broken three or four days before the accident; there were no signs up there; you could not see the hole in the bridge until you got right upon it; it was a six or eight-foot bridge; he knew three or four days before the accident that the plank was broken and hauled gravel and piled it over the bridge all the way across; did this three or four days before the accident; when he last went over the bridge you could not see the broken place because it was covered with dirt.

There were a number of other witnesses who testified about the bridge and the statements they said Carson made, and some of the evidence was in conflict with the evidence set out above.

Homer Byers testified that his job was assistant woods foreman, and he was working for the appellee in September, 1936; his duties were to look after the logging operations and see that the orders of the woods foreman were carried out; the appellee had a road crew in Howard county; he never did order the bridge or road crew to do any work on the Corn Ridge road prior to the time Carson had his accident; the first time he did any work was two or three days after the accident they raised the bridge where the accident occurred; he saw the bridge before Carson had his wreck and it was in good condition only a little bit low; some two or three inches below the ground on each side of the bridge; the bridge was not broken; no holes in it; Carson was not directly under witness; there was a foreman he worked under and witness was over this foreman; Hethcock was road foreman; his duties were to work on the road whenever he was told by witness or Mr Clawson; he saw Hethcock the morning before the accident and gave him orders over the roads and bridges to fix; he was not supposed to fix it until he went up and told witness about it; if a bridge was broken, Hethcock would see witness that night and ask him what to do next day about...