Marken v. Empire Drilling Co.

• Decision Date: 15 February 1956
• Docket Number: No. 2701,2701
• Citation: Marken v. Empire Drilling Co., 75 Wyo. 121, 293 P.2d 406 (Wyo. 1956)
• Parties: Jimmie MARKEN, Plaintiff and Respondent, v. EMPIRE DRILLING COMPANY, Inc., a Corporation, Defendant and Appellant.
• Court: Wyoming Supreme Court

Page 406

293 P.2d 406

75 Wyo. 121

Jimmie MARKEN, Plaintiff and Respondent, v.EMPIRE DRILLING COMPANY, Inc., a Corporation, Defendant and Appellant.

No. 2701.

Supreme Court of Wyoming.

Feb. 15, 1956.

Edward E. Murane of Murane & Bostwick, Casper, for appellant.

William J. Wehrli, Houston G. Williams, Casper, for respondent.

HARNSBERGER, Justice.

This suit arose because of injuries sustained by Jimmie Marken, plaintiff and now respondent, when he was crushed between a moving truck and a standing truck in the oil fields of Natrona County, Wyoming.The case was tried to a jury which returned a verdict in plaintiff's favor for some $21,000 and judgment was rendered accordingly.The defendant has appealed.

It appears that at the time of the accident the Empire Drilling Company, Inc., defendant and appellant, was hired by plaintiff's employer, Marsh and Pursel, drilling contractors, to move their drilling rig to which plaintiff was assigned as driller.For this operation, defendant was using a Mack truck, driven by one Hensley, a GMC truck, driven by Thompson, and a Ford truck, driven by Nall.The derrick of the drilling rig had been lowered and loaded in a horizontal position, the base or bottom end of the derrick being fastened to and resting upon the bed of the Mack truck which was being driven and operated by defendant's employee, Hensley, who was in charge of moving the equipment, and the upper or top end of the derrick being fastened to and resting upon the bed of the GMC truck.This type of loading served to couple or hold together as a unit the Mack truck heading in one direction and the GMC truck heading in the opposite direction with the derrick acting as the coupling and making an over-all length of load and trucks approximating one hundred twenty feet.However, only the Mack truck had motive power as the driving axles of the GMC truck were broken, although its motor would run and would operate its air brakes and air horn but the truck could not move under its own power.In consequence movement of the entire equipment depended solely upon power furnished by the Mack truck.Because of physical conditions, it was necessary that the loaded equipment be first moved backward, that is, by backing the Mack truck.When the driver of the Mack truck attempted to back out, the drive wheels of the Mack truck could not get sufficient traction because they were resting in wet, slippery, drilling mud.In an effort to get moving, the driver started a 'rocking' operation, applying power alternately forward and backward but was only able to move about three feet in either direction although this rocking was tried for several minutes.The Ford truck was then backed up in front of the GMC truck and plaintiff and Garrison, another employee of Marsh and Pursel, went between the two vehicles and commenced chaining them together when the GMC truck, being pushed by the Mack truck, started forward and pinned and crushed plaintiff against the rear of the Ford truck.

The plaintiff, inter alia, had pleaded in substance that when plaintiff found the Mack truck unable to back out he told the driver of the Mack truck that he would get help to move the load and 'to hold the load'; that plaintiff then directed the Ford truck to back up in front of the GMC truck and plaintiff and Garrison went between the GMC and the Ford trucks to chain them together so as to enable the Ford to assist in moving the load; that without any warning the driver of the Mack truck moved the load backward crushing plaintiff between the GMC and the Ford and that this action of defendant's employee was negligent and careless and without warning to plaintiff who was in a position of peril, which fact was known or should have been known to the driver of the Mack truck and that as a direct and proximate result of the carelessness and negligence of defendant, acting by and through its driver, plaintiff was injured.

Defendant answered substantially denying the alleged negligence and pleaded contributory negligence on the part of plaintiff.

Defendant took the position that these allegations charged specific negligence and therefore defendant's liability was restricted solely to negligence on the part of Hensley, the driver of the Mack truck.In consequence, at the close of plaintiff's evidence, the defendant filed its motion for a directed verdict, insisting that plaintiff's evidence failed to show Hensley either knew or should have known the plaintiff was in a position of peril when the load was moved backward without warning.The motion was overruled.Whether or not that motion should have been sustained need not be discussed, as appellant concedes that under decisions of this court the motion was waived when defendant thereafter elected to put in its own evidence.Campbell v. Weller, 25 Wyo. 65, 82, 164 P. 881, 885;Boyle v. Mountford, 39 Wyo. 141, 147, 148, 270 P. 537, 539;Hawkins v. Loffland Bros. Co., 70 Wyo. 366, 377; 250 P.2d 498, 501, 502.However, after the close of all the evidence, the defendant again moved for a directed verdict and this motion was also overruled.The appellant submits this was reversible error.

The plaintiff's evidence in addition to establishing the factual situation as above summarized had shown that plaintiff's duties required him 'to see that the rig is moved--tore down and moved and rigged up without too much loss of time, without too much destruction to the equipment by bad hitches, and so on and so forth,' and that the responsibility for movement of the rig after it was loaded upon the trucks was with the defendant; that after the 'rocking' operation had continued for several minutes, the driver of the Mack truck got out of the cab and talked the situation over with Marsh and Pursel's tool pusher, Mr. Billingsley, who had supervision of the rig and of its being moved; that the tool pusher decided that they would have to get assistance, it being unclear if he stated this decision to the truck driver, who then returned to his truck; that plaintiff also discussed the predicament with the tool pusher and the need for getting help; that plaintiff then went to within ten feet of the cab of the Mack truck on the side in which the driver was seated with his arm over the door with the window open and told the driver that plaintiff would get some help and 'to hold the load'; that plaintiff did not know whether the driver saw him--that he made no response; that plaintiff then went to the rear of the load and directed the Ford truck to back up to within a distance of ten feet of the front of the GMC truck in order that the Ford might be used to help move the load; that the GMC was not moving when plaintiff and Garrison went between the front of the GMC truck and the backed-up Ford truck; that Garrison fastened one end of a chain to the front of the GMC truck and the plaintiff began securing the other end of the chain to the rear of the Ford truck; that Garrison had completed his task and was turning around to help plaintiff, and plaintiff, after dropping his end of the chain over the 'end roll' on the rear of the Ford, was in the act of stooping or squatting down to retrieve the end of the chain in order to complete the fastening, when Garrison noticed the load beginning to move backward; that then Garrison jumped back from between the trucks and hollered a warning to plaintiff; that plaintiff first started to jump from between the trucks, then fearing he might be run over, plaintiff reached up and grasped a part of the 'gin pole,' mounted on the rear of the Ford truck, in an effort to pull himself out of danger, but before he could get completely out of the way the front of the GMC truck pinned and crushed him against the rear of the Ford truck, resulting in his being seriously and permanently injured, and that there was no horn sounded or hollering or any other warning given plaintiff that the load was being moved backward other than the shouted warning given by his fellow employee after the backward movement had started.

Appellant assumes the driver's failure to make response when plaintiff told him 'to hold the load' and he would get some help proved the driver had not heard plaintiff and therefore the driver could not be charged with any knowledge which plaintiff's direction might otherwise have imputed to him.But plaintiff's admonition required no response from the driver, except his compliance.Whether or not the driver heard was a question of fact for the jury to decide from its consideration of all circumstances shown by the evidence.Nor did the driver's later testimony, that he had not heard, take away the jury's right to determine the matter.The jury might not be and, in the light of its verdict, evidently was not impressed with the driver's testimony which, of course, could have been influenced by a desire to exculpate himself from fault.

Appellant evidently also assumes that when plaintiff frankly said he did not know whether the driver saw him, this fortified the contention that the driver had not heard the plaintiff.We see little merit in this, as one may hear without seeing.In any event what has previously been said has equal application in the matter.

In a similar vein it might be observed that defendant's evidence and conclusion that the noise of the Mack truck motor made it probable that the driver had not heard could have been discounted by the jury, particularly as we find no evidence that when the caution was given to Hensley by plaintiff that the motor was running at all.Certainly the driver could not have so credibly testified, as he was maintaining that he did not hear, so would not have known at what time the plaintiff spoke to him.

But appellant has entirely overlooked other very important evidence which the court was privileged to consider when called upon to pass on the motion.The defendant's own witness, the driver of the Mack truck, testified that 'a good oil-field hand would...