King v. Cardin
| Decision Date | 12 January 1959 |
| Docket Number | No. 5-1683,5-1683 |
| Citation | 319 S.W.2d 214,229 Ark. 929 |
| Parties | Cecil KING, Appellant, v. Carrie CARDIN, Special Administratrix of the Estate of Grover C. Dyer, Deceased, Appellee. |
| Court | Arkansas Supreme Court |
Wright, Harrison, Lindsey & Upton, Little Rock, for appelllant.
James C. Cole, Malvern, for appellee.
This is an action for the wrongful death of Grover C. Dyer, who was struck and killed by a dump truck being driven by the appellant, Dyer's fellow employee. The jury returned a verdict for the appellee, Dyer's administratrix, fixed the damages at $5,000 for the estate and $45,000 for the decedent's widow and children, and attributed 5 per cent of the total negligence to Dyer.
A principal contention for the reversal of the judgment is that there is no proof of negligence on the part of the appellant. Our study of the record convinces us that the testimony presented a question for the jury on this point.
Dyer and King were employed by a contracting company, which was repaving with asphalt a highway south of Malvern. The hot asphalt is spread by what is called a Barber Green machine, which is a wide self-propelled vehicle that lays the asphalt along one entire traffic lane. As this machine moves slowly forward dump trucks carrying asphalt back up one at a time to a hopper at the front end of the machine, and the machine continues in motion and pushes each truck while the asphalt is being dumped into the hopper. The asphalt passes through the Barber Green machine and is distributed at the rear end of the machine in an even layer upon the highway. The operation requires a crew of ten or twelve men, some of whom work ahead of the machine, preparing the roadway, while others work behind the machine, smoothing the freshly laid asphalt.
On the day of the accident the west half of the highway was being repaved, in a northerly direction, with the east lane open to one-way traffic. King, who had arrived with a load of hot asphalt and had turned his truck around, started backing southward toward the front end of the Barber Green machine. King's backward movement was directed by another employee, Carl Williams, who stood on the west shoulder of the highway near the front of the Barber Green machine. It was Williams' duty to align the dump truck so that its rear wheels would make proper contact with the rollers by which the moving Barber Green machine pushes the truck along while the hopper is being filed. At this time, however, the Barber Green machine was stationary, its operator having shut off the motor a short time earlier.
While King was backing toward the machine the decedent, Dyer, was walking in the same direction down the center of the highway. An unidentified car, traveling north in the east lane, came so close to Dyer that he stepped into the west lane, in the path of King's truck. Despite the shouts of Williams and others the truck hit Dyer and knocked him to the pavement. Dyer got up to his hands and knees, but the bed of the truck struck hm and knocked him down again. He then tried to roll away, but his head was crushed by one of the wheels.
King's insistence upon his freedom from fault is based largely upon the assumption that Dyer was walking faster than the truck was traveling and had just passed the truck when he stepped into its path and was struck in practically the same instant. The testimony of the witness Cloud supports this view, but there is other substantial evidence indicating that Dyer had been ahead of the truck for an appreciable time before he stepped into the west lane. Two witnesses thought the truck was backing too fast; they estimated its speed at about eight miles an hour, which exceeds a man's walk. The witness Isaac Bell testified that Dyer was standing still with his back to the truck when he was hit.
One the issue of negligence there was also testimony that after Dyer was hit the second time the truck rocked as if the brakes had been applied, but then the truck continued to back and struck Dyer again. It was also shown that it was understood by all the crew that dump trucks were not to be backed up to the Barber Green machine while its motor was shut off. The operator of the machine testified that when he turned off the motor King's truck had not begun to back and was standing still about a hundred feet away.
The appellant objected to the testimony about the practice just mentioned, but we think it was a...
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