Duncan v. Montgomery Ward & Co.

• Decision Date: 12 February 1940
• Docket Number: No. 11536.,11536.
• Citation: 108 F.2d 848
• Parties: DUNCAN v. MONTGOMERY WARD & CO.
• Court: U.S. Court of Appeals — Eighth Circuit

108 F.2d 848 (1940)

DUNCAN v. MONTGOMERY WARD & CO.

No. 11536.

Circuit Court of Appeals, Eighth Circuit.

January 23, 1940.

Rehearing Denied February 12, 1940.

COPYRIGHT MATERIAL OMITTED

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 Jake 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 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 of 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 the box to the platform in one continuous operation. It was necessary to walk in a stooped position until they emerged from the body of the truck. When they arrived on the projecting end gate plaintiff "hollered, `Hold it, Jake, take it easy; I am stepping down.'" At that moment, just as plaintiff was stepping down from the end gate to the platform, without giving any signal or warning, Jake "tilted" the box over toward plaintiff by suddenly raising his side of the box some six or eight inches. At the moment the weight came upon plaintiff as he stepped down to the platform, he felt a pain in his back; and he testified: "I hollered, `Set it down, Jake * * * I can't do any more; I hurt my back.'" The injury proved to be serious.

The appellee contends, and the trial court in an opinion seems to agree, that the evidence was not sufficient to sustain a finding (1) that the act of Jackson in raising his side of the box under the circumstances was negligent, nor (2) that, if negligent, it was the proximate cause of the injury. The appellant, to support his contention that the court was in error, relies upon Mississippi River Fuel Corporation v. Senn, 184 Ark. 554, 43 S.W.2d 255; Border Queen Kitchen Cabinet Co. v. Gray, 189 Ark. 1137, 76 S.W.2d 305; Phillips Petroleum Co. v. Jenkins, 190 Ark. 964, 82 S.W.2d 264; and similar cases. The appellee does not distinguish the facts in these cases from the facts in the case at bar, but claims that the rule there announced has been repudiated in more recent decisions of the Supreme Court of Arkansas. Counsel for appellee rely upon St. Louis-San Francisco R. Co. v. Burns, 186 Ark. 921, 56 S.W.2d 1027; St. Louis-San Francisco R. Co. v. Bryan, 195 Ark. 350, 112 S.W.2d 641; Missouri Pac. R. Co. v. Vinson, 196 Ark. 500, 118 S.W.2d 672; St. Louis-San Francisco R. Co. v. Ward, 197 Ark. 520, 124 S.W.2d 975; and St. Louis-San Francisco R. Co. v. Childers, 197 Ark. 527, 124 S.W.2d 964.

As applied to the facts of this case we do not find the Arkansas decisions relied upon by the respective counsel for the parties inconsistent. When read together they establish as the law of Arkansas the following principles applicable to the case now before us for decision:

In order to warrant a finding that negligence is the proximate cause of the injury, it must appear that the injury was the actual and probable consequence of the negligence, and that it ought to have been foreseen in the light of the attending circumstances. St. Louis-San Francisco R. Co. v. Bryan, supra; Mays v. Ritchie Grocer Co., 177 Ark. 35, 5 S.W.2d 728; Missouri Pac. R. Co. v. Vinson, supra; St. Louis-San Francisco R. Co. v. Childers, supra.

Negligence is never presumed, but the burden is on the party asserting it to establish the fact by a preponderance of the evidence. The test is whether the acts of the fellow servant were those that a person of ordinary prudence would have done under the circumstances. Where fair-minded men might differ honestly as to the conclusion to be drawn from the...