Lion Oil Refining Co. v. Smith
Decision Date | 04 December 1939 |
Docket Number | 4-5686 |
Citation | 133 S.W.2d 895,199 Ark. 397 |
Parties | LION OIL REFINING COMPANY v. SMITH |
Court | Arkansas Supreme Court |
Appeal from Clark Circuit Court; Dexter Bush, Judge; affirmed.
Judgment affirmed.
Jeff Davis, J. A. O'Connor, Jr., and B. L Allen, for appellant.
G W. Lookadoo and J. H. Lookadoo, for appellee.
Appellee, T. E. Smith, brought this suit in the Clark circuit court to recover $ 3,000 damages alleged to have been sustained by him when struck and run down by one of appellant's trucks, driven by one of its employees, on July 14, 1938, while appellee was walking along the highway leading to the Shuler oil field in Union county.
He alleged in his complaint that he was walking "on the left side of the road near the edge of said road, as is the customary and proper place for a pedestrian to walk, and while walking on the left side of the road and as near a ditch that was parallel with said road as was possible for him to be, he met a Chevrolet coupe with a pickup back that belonged to the Lion Oil Refining Company, and was being driven by one of the defendant's agents, servants or employees; that as they approached each other, defendant negligently cut across and directly into the plaintiff, striking him and knocking him clear of the road and over into and under a wire fence and injured plaintiff as follows": He then set out the nature and extent of his injuries and sought damages in the sum as indicated above.
Appellant answered, denying every material allegation in the complaint, and in addition pleaded the contributory negligence of appellee.
From a jury verdict of $ 3,000, and the judgment rendered thereon, comes this appeal.
Two errors are assigned here by appellant: First, that "there was no proof offered upon which the jury was justified in finding that the car which struck the appellee was, at the time, being driven by an agent of the appellant, acting in the course of his employment." We cannot agree to this contention.
The testimony stated in its most favorable light to appellee is to the following effect:
On July 14, 1938, appellee, while returning from the Shuler oil field in Union county, Arkansas, met one of appellant's trucks, and (quoting from his testimony):
He further testified that he had been on that road a number of times before and knew that Lion Oil Refining trucks operated over it.
The testimony further reflects that a Mr. Beasley, his brother and two other men, a Mr. Chastain and a Mr. McCoy, were in a car nearby and saw appellant's truck strike appellee, Smith. Quoting from Beasley's testimony:
Witness Ocie McCoy corroborated Mr. Beasley's testimony, that the truck that hit appellee had a lion's picture on it, some wire cable and wire rope in it, and that the road was about fifty feet wide, and further:
Witness Chastain, who was in the Chevrolet car with McCoy and Beasley, corroborated their testimony.
A Mr. Mills, witness for appellant, who was the general service manager for appellant, testified that he was in charge of the purchasing, and assigning of appellant's trucks to the different departments, and looked after their up-keep. He testified that appellee, Smith, gave him the license number of the truck which he, Smith, claimed struck him, and quoting from his testimony:
He further testified that some of appellant's pickup trucks went down to the Shuler field on the 14th day of July, 1938, the day on which appellee claims to have been injured, and further:
It will thus be seen from this evidence that on July 14, 1938, the day the testimony shows appellee was struck by one of appellant's trucks, at least seven of appellant's trucks similar to the one in question passed over the road on which appellee was walking. They were painted yellow with a lion's head and the word "Lion" printed on each. They carried wire and cable down to the Shuler field similar to that carried on the truck that struck appellee.
Appellee took the license number of the truck which struck him, gave this number to appellant's general service manager, Mills, and upon investigation Mills ascertained that one of appellant's trucks, fitting the description given by appellee and his witnesses, carried this particular license number and was actually driven along the road in question by Gaffney Williams, an employee of appellant, on the day in question, July 14, 1938.
Appellant did not offer Gaffney Williams, this truck driver, as a witness nor any of its other truck drivers to contradict appellee's testimony.
On this state of the record it is our view that the evidence is ample to support the finding that the truck in question was the property of appellant and was being driven and operated by one of its employees in the master's business, and that the instant case is controlled by the recent case of Plunkett-Jarrell Grocer Company v. Freeman, 192 Ark. 380, 92 S.W.2d 849. In fact we think the testimony, in the instant case, is stronger in favor of appellee, than that in the Plunkett-Jarrell case. In that case this court said:
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Thomas v. Newman, 76-284
...lookout to avoid injury to pedestrians, and should anticipate their presence. Williamson v. Garrigus, supra; Lion Oil Refining Co. v. Smith, 199 Ark. 397, 133 S.W.2d 895. The care exercised must be commensurate with the danger reasonably to be anticipated. Brotherton v. Walden, supra; Lion ......
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