Lee v. Pate

• Decision Date: 10 July 1939
• Docket Number: 4-5551
• Citation: 131 S.W.2d 8,198 Ark. 723
• Parties: LEE v. PATE
• Court: Arkansas Supreme Court

131 S.W.2d 8

198 Ark. 723

LEE v. PATE

4-5551

Supreme Court of Arkansas

July 10, 1939

Appeal from Craighead Circuit Court, Jonesboro District; G. E. Keck Judge; reversed.

Judgment reversed and action dismissed.

Arthur L. Adams, for appellant.

Denver L. Dudley, for appellee.

OPINION

BAKER, J.

The plaintiff, J. C. Pate, sued defendant, J. W. N. Lee, for damages for certain alleged personal injuries and recovered a judgment for $ 600. The defendant has appealed.

The defendant presents only two propositions urged for reversal (1) the lack of substantial evidence to support the verdict and consequent judgment; (2) error on account of plaintiff's alleged intentional injection into the case the fact that appellant had liability insurance.

For the reason that it would unduly extend this opinion to quote from the evidence, we state the facts and conclusions therefrom with every inference to sustain the verdict.

Appellant Lee, as contractor, was constructing a building on the campus of the State A. & M. College, at Jonesboro. Appellee Pate and John Wimpy were employed on the job as steel tiers. These two worked together, neither having any control over the other. Their immediate superior was Jim Reese, who probably gave them directions as to what particular forms were required as the work progressed. They needed no advice or instruction in the manner of the performance of their duties. Both were experienced. Pate had been doing the same kind, or similar work since 1920. He had been working on this particular job about two and one-half months when he was hurt.

He and Wimpy were engaged in making spirals and other forms from steel reinforcing rods 3/4" to 7/8" in diameter about 13 1/2 feet long. Some of the forms required five rods, some seven, and others perhaps more. The spirals were used at corners and square forms were used as pillars to support walls. These steel rods were joined or tied together by "hooks," as Pate described the means of fastening one to another. At all events these rods were so joined by steel connecting pieces as to hold them in the shape desired for corners and pillars and were so placed in the building process as to reinforce the concrete mixture to be poured around them. Sometimes shorter rods, two or three feet long, were used by these men as tools to aid in shaping the forms, and even shorter pieces, perhaps 20 to 24 inches long, were used to hammer or drive the steel connecting links or "hooks" to the desired place in the form. None of these shorter pieces appears to have been in use on the date Pate was injured, but they were somewhere on the grounds.

On the day and at the time the injury complained of occurred two or three forms had been built at a new location and each had been rolled off or moved off the sawhorses or trestles at the side thereof, and the space immediately adjacent to the trestles was filled when the last of these steel forms made that day was finished. These men had placed the trestles in a driveway, or road, because it was dry there, as was stated by Wimpy. To open this roadway the spiral just finished had to be moved and the trestles also had to be taken from the road. In moving the spiral Pate took the front end and walked "backwards and sideways", as he described his movements. They proceeded to a gravel pile, upon which they placed the spiral. About the time they had reached the place where they intended to lay down this steel form, Pate stepped upon one of the short rods. He thinks it was not the one offered as an exhibit, but was like it, except the one he stepped on was not rusty, but bright. It rolled forward under his foot, causing him to fall. The steel form he was helping to carry fell upon him, causing the injury. Wimpy did not support this statement of Pate's, but, since the verdict of the jury forecloses dispute, we treat this statement as true. Since the evidences disclosed that Pate was at the front end of this form, the bottom of which was about eight inches from the ground, we think it probable that Pate, in falling, involuntarily raised the form, as his foot and the lower part of his body were carried forward by the rolling rod. Pate could not explain why this rod was at that point, except it was "throwed down by somebody." "I can't see the idea of the rod being there without somebody picked it up and throwed it there."

The evidence showed that Pate and Wimpy worked northwest of the building under construction, southeast of it, and north of the building, moving from place to place when they pleased, and probably as required for materials, and maybe, because of the necessity of having the finished forms near places they were to be used. They were then producing building forms for use on the fourth story. They were working then, just the two of them together, without any superior or immediate overseer to advise or control the manner of the performance of their duties. They formed a complete working unit, not connected with about forty other workers, and were required only to have the forms ready when needed.

Now, what was the negligence relied upon to sustain the action or support the verdict and judgment?

A failure to use ordinary care to furnish a reasonably safe place to work.

Appellant insists that there is not only no evidence to sustain the charge of negligence, but that appellee's own testimony discloses a case of assumption of risks and also contributory negligence.

We consider the foregoing facts in the light of numerous authorities which announce long settled principles of law,...