Mississippi River Fuel Corporation v. Morris

• Decision Date: 09 February 1931
• Docket Number: 139
• Parties: MISSISSIPPI RIVER FUEL CORPORATION v. MORRIS
• Court: Arkansas Supreme Court

35 S.W.2d 607

183 Ark. 207

MISSISSIPPI RIVER FUEL CORPORATION v. MORRIS

No. 139

Supreme Court of Arkansas

February 9, 1931

Appeal from Randolph Circuit Court; John C. Ashley, Judge; affirmed.

Judgment affirmed.

H. L Ponder and John L. Bledsoe, for appellant.

Richardson & Richardson, for appellee.

OPINION

MEHAFFY, J.

This action was instituted by Harlen Morris, appellee, against the Mississippi River Fuel Corporation to recover damages caused by the alleged negligence of the appellants. Appellee alleged that he was in the employ of the appellant at the time of the injury, engaged in leveling and grading the grounds immediately around the office and plant of appellant, and that he was acting under the direction and control of appellants and its agents and employees.

The grader used in leveling and grading the grounds was a metal grader with a metal handle protruding to the rear from the center. The grader was pulled by two mules or horses. In the loading of the grader, an extra team was used, which, after the grader was loaded, was unhitched or released and moved to the side, thereby permitting the grader to be pulled forward to where it was unloaded. The appellee was handling this extra team, and he alleged that, after he unhitched the extra team from the grader and stepped aside to permit the grader to be pulled forward, the driver of the team pulling the grader, without notice or warning to appellee, negligently and carelessly began whipping the team which was hitched to the grader, causing the team to suddenly and quickly turn around, and causing the handle of the grader to strike him about his legs, inflicting painful and severe injury to his legs. He alleged that prior to the injury he was an able-bodied young man, earning $ 3 a day and that as a result of his injury he was rendered incapable of following his usual occupation; that his injuries were permanent; that he was required to spend large sums of money for treatment; and that he suffered severe pain and would continue to suffer throughout his life, and asked for damages in the sum of $ 3,000.

Appellant filed a demurrer, which was overruled, and then filed an answer in which it denied all the material allegations in appellee's complaint, and pleaded contributory negligence as a defense. Appellant in its answer also alleged that appellee was in the employ of Morrison & Taylor, independent contractors, and that these contractors had full charge of the work.

Harlen Morris, appellee, testified that he was working at the gas plant belonging to appellant at Biggers, Arkansas, in November, 1929, under an employee named Edwards, and was at the time driving what they called the "snatch team." The team belonged to Roy Morrison, who paid appellee his wages and who employed him. He was told by Morrison to do what appellant's foreman told him to do. He was at work there in the spring and went back in the fall and had been there about a month and a half before he was injured. There were about fifteen teams working at the time. Appellee was handling the extra team, the one that was hooked on to pull until the grader was filled. It is heavy to pull when filling and required an extra team.

When the team got up on the bank, the extra team was unhitched, and the regular team took the loaded grader on to where it was emptied. There was a handle extending back from the back end of the grader, about six feet long, and, when the grader is loaded, this handle sticks out parallel with the ground about eighteen inches high.

Mr. Edwards was the foreman, but appellee was working under Mr. Bush. Edwards was a foreman under Mr. Bush. Bush had told appellee how to use the extra team. Bush was foreman on the job, and worked for the Mississippi River Fuel Corporation. Appellee stepped around to the left after releasing the extra team, and the iron bar came around and hit him on the leg. When he would unhook the extra team from the grader, he would step back after it passed and hook on to another grader. After he would unhook the team, the man driving the team hooked to the grader should have gone straight ahead for about 40 feet, and the appellee would hook on to another grader.

At the time appellee was injured, Frank Wilson, who was working for the Mississippi River Fuel Corporation, was driving the team hitched to the grader that injured appellee. Appellee said that Wilson was careless and not paying attention to what he was doing, and, after appellee had unhooked the team and stepped to one side, Wilson was beating his team, jerking them around and slashing them, and appellee did not see it until the bar hit him and knocked him down. The team turned to the right, nearly all the way around, and the grader turned with them. The wheel went into a ditch and threw the whole weight on appellee. The safe way for Wilson to have done was to go out past appellee and then turn off, but he turned right at appellee. Wilson and the other drivers had been driving straight ahead and turning after they passed him.

After the injury appellee was carried to Biggers and next day to Hoxie and treated by a physician. He was confined to his bed for two months. His knee cap was knocked off and the joint burst. It still swells and turns black and jumps out of place. He cannot walk over three or four blocks without sitting down, and has been unable to do any work since the injury except hauling with a team. Before the injury he weighed 192 pounds and now weighs 160. He gets $ 1 a day for driving a team, and the jolting of the wagon hurts him and causes his leg to continue to swell. He used crutches for about three months. He is 22 years old and married, but has no children.

At the time of the injury, he was driving one of the teams of Mr. Morrison. Mr. Morrison paid appellee, but the Mississippi River Fuel Corporation paid Mr. Morrison. None of his checks came from the Mississippi River Fuel Corporation.

Frank Wilson was driving a team that belonged to Mr. Morrison. Witness did not see Frank Wilson whipping and jerking his team. Witness was behind him at the time. He saw him as he was falling over; did not see Wilson slashing the team before he was hit, but did afterwards.

When appellee went to work, Mr. Morrison told him to do what Mr. Bush said to do. After witness cut loose from this grader, he stepped aside to the place he was in the habit of stepping to; had never been hurt before, and no teams had ever turned around at that particular place before.

Burl Bushong testified that he was working for appellant; that Mr. Edwards was the foreman, and he was between 50 and 100 feet from Morris when he got hurt; saw Frank Wilson driving in, and saw Morris unhook his grader, and about that time Frank Wilson began fighting and jerking his team, and the team wheeled clear around and turned the scraper suddenly around, and the bar struck Morris on the leg, and he went down.

Wilson was working under the directions of Mr. Edwards, the foreman for the appellant. Edwards directed them what to do and when to do it. Wilson should have waited until the man driving the snatch team unhooked and got out of the way, and, after the snatch team was unhooked and the driver stepped to one side, Wilson should have pulled ahead past the snatch team and turned out. He wheeled right around and turned right there. It was customary to pull straight ahead past the snatch team and pull out. Witness was employed by Dr. Taylor, who was a partner of Morrison's, and Morrison was on the job with several teams.

Dr. Morrell testified as to the injury and the extent of it. He said the injury was likely to be permanent; his bill was $ 142 to date, and appellee is still under his treatment, and will need medical treatment for a long time.

Homer Parrish also testified about appellee's injuries and about his health before the injury. Counsel agreed that under the American Mortality Tables appellee had a life expectancy of 41.53 years, and that he was 22 years of age at the time.

Frank Wilson, who was driving the team at the time appellee was injured, testified that he was driving a team hitched to the wheel scraper; they were filling low places around the gas plant, and leveling up the grounds. Witness had been at work there for two or three days. Mr. Edwards had supervision of how the dirt was placed. When the grader was loaded, witness would drive up and turn to the right; that appellee, when he cut loose, stepped out to the left. It was a bad place to turn out, and witness drove up even with appellee and turned to the right. It was rough going out, and there was a little hole that the wheel dropped into, and made the handle wobble out and strike him. He walked between appellee and witness' team. Appellee was driving a snatch team; would unhook and pull out to the side when scraper was loaded. At the time appellee was hurt, witness could not say what he was doing. Witness was driving a pair of mules, and does not think he was whipping them at the time. He drove them as he usually did, and they did not wheel around quickly on account of beating, jerking, or slashing them. The long iron handle was sticking out behind, and, if appellee had been paying any attention to his business, he could have seen it.

Morrison hired witness, and told him that Mr. Edwards would tell him what to do, and Edwards told him where to get the dirt and where to put it. Morrison never told witness where to get the dirt or where to put it, and he never heard Morrison telling a man what to do or how to do the work; Edwards did that. Was turned about half around when he hit Morris.

Chrisley Smith testified that he was working at the gas plant driving a team at the time Morris was injured; did not see him at the time he was injured; does not know which way...