Gilbert v. Life & Casualty Co. of Tennessee, 168.

• Citation: 46 S.W.2d 807
• Decision Date: 29 February 1932
• Docket Number: No. 168.,168.
• Parties: GILBERT v. LIFE & CASUALTY CO. OF TENNESSEE.
• Court: Arkansas Supreme Court

46 S.W.2d 807

GILBERT v. LIFE & CASUALTY CO. OF TENNESSEE.

No. 168.

Supreme Court of Arkansas.

February 29, 1932.

Appeal from Circuit Court, Calhoun County; L. S. Britt, Judge.

Action by Dora Gilbert against Life & Casualty Company of Tennessee. From judgment for defendant on directed verdict, plaintiff appeals.

Reversed and remanded.

This appeal is prosecuted from a judgment upon an instructed verdict denying recovery of benefits or indemnities to the beneficiary of an insurance policy issued by appellee upon the life of the husband of appellant.

It was agreed that the policy sued on was in full force and effect at the time of the death of the insured, but denied that the accident was covered by the terms of the policy.

"It is agreed by the respective attorneys herein that Euffies Gilbert was killed by being struck by a cable, one end of which was fastened to the tractor, and the other end of which was fastened around a stump, and that the end fastened around the stump slipped off and struck the deceased thereby causing his death."

The facts are virtually undisputed. It appears from the testimony that insured was engaged in helping to pull stumps out of the right of way of the new public road properly laid out by order of the county court along, near, and beside the side of the old public road to straighten and shorten it for travel thereon. This was being done by a tractor to which a cable was attached; the cable being put around the stumps by insured. In attempting to pull one of the stumps, the driver of the tractor, after receiving a signal from insured that the cable was fastened to the stump, started up and the cable slipped and flipped around, striking insured on the arm and chest, injuring him so severely that he died where he fell.

A witness working in the field about 50 yards from where insured was killed "saw him when he was struck standing on the highway and saw him fall but didn't see what hit him." When he reached the scene, a tractor was standing there which had been pulling at the stump with the cable attached to it. It did not pull the stump, the bark had slipped off near the top, and the cable was right on the ground still attached to the tractor. The body of deceased was about 7 or 8 feet from the stump and about the same distance from the tractor. The cable was between the body and the tractor, with a large iron hook attached to the loose end, and the other end was attached to the tractor. The right of way had only been cleared, they were pulling the stumps, and the road had not been graded at that place. He seemed to be standing in the right of way where the stumps had been pulled when struck. He was not on the old roadbed when struck but on the new one. The place where this occurred was the place where they had just left the old highway in order to straighten it, the new road just straightened the old road at this end, and it happened about 4 or 5 feet from the old highway, which had been used for a long time.

Some witnesses testified that there were tracks indicating that other cars had gone along the new highway, although the majority of the witnesses testified that the old highway was still generally used and...