Harris v. Hercules Incorporated

• Decision Date: 20 May 1971
• Docket Number: No. LR-70-C-39.,LR-70-C-39.
• Citation: 328 F. Supp. 360
• Parties: Frank HARRIS, Plaintiff, v. HERCULES INCORPORATED, Defendant, v. Ray HARRIS d/b/a Harris Erection Service, Third-Party Defendant, The Travelers Insurance Company, Intervenor.
• Court: U.S. District Court — Eastern District of Arkansas

328 F. Supp. 360

Frank HARRIS, Plaintiff, v. HERCULES INCORPORATED, Defendant, v. Ray HARRIS d/b/a Harris Erection Service, Third-Party Defendant, The Travelers Insurance Company, Intervenor.

No. LR-70-C-39.

United States District Court, E. D. Arkansas, W. D.

May 20, 1971.

Gerland P. Patten, Patten & Brown, Little Rock, Ark., for plaintiff.

Harlan A. Weber, Terral, Rawlings, Matthews & Purtle, Little Rock, Ark., for Travelers Ins. Co.

Alston Jennings, Wright, Lindsey & Jennings, Little Rock, Ark., for Hercules Inc.

Austin McCaskill, Barber, Henry, Thurman, McCaskill & Amsler, Little Rock, Ark., for Ray Harris.

MEMORANDUM OPINION

EISELE, District Judge.

This is an action by plaintiff, Frank Harris, to recover for personal injuries sustained when the boom of a crane came into contact with, or close enough to, an uninsulated high-voltage line so as to energize a cable attached to the crane which was then being handled by the plaintiff. At the time, he was working for the Harris Erection Service, an independent contractor, on the premises of the contractee, the defendant Hercules, Inc.

The case was submitted on interrogatories. The jury found that the defendant, Hercules, was 85% negligent; that the plaintiff was 15% negligent; that the plaintiff assumed the risk; and that the plaintiff was damaged in the amount of $90,000.00. Judgment has not been entered. The plaintiff has moved to set aside the verdict and, in the alternative, for a new trial based upon two grounds: (1) that the jury's answer to the assumption of risk interrogatory was the result of a misunderstanding and did not represent its true intentions, and (2) that under the law of Arkansas the assumption of risk defense was not applicable and should not have been submitted to the jury, or, if applicable, should not operate as a complete defense.

There is nothing to support plaintiff's contention that the jury misunderstood, or necessarily answered incorrectly, the interrogatory concerning assumption of risk. The Court inquired of the jurors whether the answers to all of the interrogatories represented their unanimous verdicts and was assured that they did. Neither party desired to have the jury polled.

The understanding and intent of the jurors as to the effect of their answers is immaterial.¹ Thedorf v. Lipsey, 237 F.2d 190 (7th Cir. 1956); Ward v. Cochran, 71 F. 127 (8th Cir. 1895). The jury answered the interrogatory concerning the assumption of risk defense "yes". And there is substantial evidence to support this finding.

The plaintiff's second contention concerning the applicability of the doctrine of assumption of risk is a much more difficult question. It will be helpful at this point to briefly state the facts.

The plaintiff, Frank Harris, is an ironworker with a great deal of experience in the erection field, having been employed from time to time by several local contractors, including his brother, Ray Harris, doing business as the Harris Erection Service.

On or about July 23, 1966, the defendant, Hercules, Inc., contracted with Harris Erection Service to perform certain work at their herbicide and pesticide plant in Jacksonville, Arkansas. The job consisted of removing an eroded liquid tank and replacing it with another. The work involved the use of a crane. Ray Harris employed the plaintiff as a "rigger" to make the necessary attachments to the tank to be removed. To perform the work, the crane was placed in close proximity to an uninsulated energized power line. After removing the eroded tank and replacing it with another one, Ray Harris was requested to erect steel columns on concrete foundations, said columns to constitute the structure to support another tank. This work was also done directly under the uninsulated high voltage lines. It was during the process of performing this latter work that the plaintiff was injured. The plaintiff contends that Hercules was negligent in failing to cause the power lines to be de-energized during the performance of the work, i. e., in failing to provide plaintiff a safe place to work. Carroll v. Lanza, D.C., 116 F. Supp. 491 (1953); Barrett v. Foster Grant Co., D.C., 321 F.Supp. 784 (1970).

At the close of the plaintiff's case and again at the close of all of the evidence, the defendant moved for a directed verdict on the ground that, as a matter of law, the plaintiff assumed the risk of his injury and was, therefore, barred from any recovery. The Court denied the motion, and submitted the issue of assumption of risk to the jury over plaintiff's objection. There was no objection to the form of the assumption of risk instruction.²

The plaintiff argues in its motions that the doctrine of assumption of risk should have no applicability to this case and that that issue should not, therefore, have been submitted to the jury. In the alternative, plaintiff argues that, if the doctrine is applicable, it should not be interpreted to operate as a complete defense and bar.

In Arkansas, the assumption of risk defense applies not only in master and servant cases but also in ordinary cases of negligence. See Bugh v. Webb, 231 Ark. 27, 328 S.W.2d 379 (1959). Efforts to restrict its application have not been too successful.

Judge Miller, in Carroll v. Lanza, 116 F.Supp. 491, 506 (W.D.Ark. 1953), set forth the Arkansas law pertaining to the doctrine of assumption of risk:

"The doctrine of assumed risk is based upon voluntary exposure to a known danger. * * * The defense of assumed risk will be applied in cases fairly within the rule, but it is not a favored doctrine, being artificial and harsh, and should not be extended beyond its reasonable limits. * * *

"Even though an employee knows of his master's negligence, nevertheless he does not assume the risk of the increased hazard unless he actually realizes the danger to which he is exposed. * * * In other words, an appreciation of the danger is a prerequisite to the application of the doctrine."

It was the contention of the defendant in Carroll v. Lanza that the doctrine of assumption of risk applied in an action by an employee of a subcontractor against the general contractor. Judge Miller had this to say:

"There is some doubt as to whether the doctrine of assumption of risk applies between a general contractor and the employees of his subcontractor. However, the Arkansas Supreme Court has applied the doctrine in actions by employees of shippers against railroad companies for injuries sustained while unloading box cars, owned by said railroad companies, as a result of the unsafe condition of the box cars. * * * And, the Court is of the opinion that the Arkansas Supreme Court would likewise apply the doctrine in the case of an action by an employee of a subcontractor against the general contractor."

The Court concurs with Judge Miller and, reluctantly, concludes that the Supreme Court would likewise apply the doctrine in the case of an action by an employee of an independent contractor against the contractee since the relationship is essentially the same.

In this case there was ample evidence to support the submission of the issue of assumed risk to the jury. The evidence is relatively uncontradicted that the uninsulated power line presented an open and obvious danger to the plaintiff and that the plaintiff recognized and appreciated said danger. In the Court's opinion, however, there was some doubt as to the "voluntariness" of the plaintiff's assuming the risk. The issue was therefore submitted to the jury.

In Chicago, R. I. & Pac. Ry. v. Lewis, 103 Ark. 99, 104, 145 S.W. 898, 900 (1912), the Court said:

"The doctrine of assumed risks * * * is based entirely upon voluntary exposure to a known danger, and can only be applied in cases where the person may reasonably elect whether or not he shall expose himself to it. The exposure may be without physical coercion, yet the circumstances may be such as would render it unreasonable for a person to exercise his election not to proceed in that way."

That Court further stated, in substance, that it was unreasonable to expect a person unloading a box car to elect to stop the work or to...