McDonald v. Hickman, 5--5861
| Citation | 478 S.W.2d 753,252 Ark. 300 |
| Decision Date | 10 April 1972 |
| Docket Number | No. 5--5861,5--5861 |
| Parties | Walter McDONALD et al., Appellants, v. Jerry W. HICKMAN, Appellee. |
| Court | Supreme Court of Arkansas |
Daggett & Daggett, Marianna, John D. Eldridge, August, for appellants.
Knox Kinney, Forrest City, for appellee.
This is an action for personal injuries sustained by the appellee, Jerry W. Hickman, when he fell into an unguarded open stairwell in a house that was being constructed for one of the appellants, Walter McDonald (or MacDonald). The other appellant, also a defendant below, is Gerald Rooks, who was McDonald's chief carpenter. The jury returned a verdict for the plaintiff, fixing his total damages at $17,500 and apportioning the negligence in the ratio of 25% of the plaintiff and 75% to the defendants. For reversal the appellants contend that they were entitled to a directed verdict, on the ground that Hickman's negligence exceeded their negligence as a matter of law, and, alternatively, that the court erred in not submitting to the jury their asserted defense of assumption of risk. We find no merit in either contention.
First: Comparative negligence. On the day of the accident Hickman, an employee of a rural electric co-operative company, had gone to the unfinished house to determine what kind of circuit breakers would be needed. Rooks escorted Hickman and another co-op employee into the house. While Hickman was standing in a somewhat dark windowless hall, examining the electrical panel, he stepped to his left and fell eight or nine feet to the concrete basement. He actually fell through a four-by-eighteen-foot opening in the upper floor, where a staircase was to be installed later. The opening was unprotected. Hickman testified that Rooks later said that he should have told Hickman about the hole being there.
The court was right in refusing to direct a verdict for the defendants. The jury could well have concluded that the open hole in the dimly lighted hallway was in the nature of a concealed hazard about which Hickman should have been warned. It is not our province to compare the negligence of the litigants when fair-minded men might reach different conclusions in the matter. Willingham v. Southern Rendering Co., 239 Ark. 858, 394 S.W.2d 726 (1965); Wood v. Combs, 237 Ark. 738, 375 S.W.2d 800 (1964). Here we are firmly of the opinion that the trial judge properly left to the jury the apportionment of the total negligence in the case.
Secondly: Assumption of risk. Hickman testified that he was aware that there was danger in...
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