Oliver v. Hallett Construction Company

• Decision Date: 28 January 1970
• Docket Number: No. 19591.,19591.
• Citation: 421 F.2d 365
• Parties: Mrs. Edith OLIVER, Administratrix of the Estate of Lucheon Oliver, Deceased, and Arkansas State Highway Commission, Appellees, v. HALLETT CONSTRUCTION COMPANY, a Corporation, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

421 F.2d 365 (1970)

Mrs. Edith OLIVER, Administratrix of the Estate of Lucheon Oliver, Deceased, and Arkansas State Highway Commission, Appellees, v. HALLETT CONSTRUCTION COMPANY, a Corporation, Appellant.

No. 19591.

United States Court of Appeals Eighth Circuit.

January 28, 1970.

Isaac A. Scott, Jr., of Wright, Lindsey & Jennings, Little Rock, Ark., for appellant; Alston Jennings, Little Rock, Ark., on brief.

Harold Sharpe, Forrest City, Ark., for appellee Mrs. Edith Oliver on brief.

Before VOGEL, BLACKMUN and BRIGHT, Circuit Judges.

VOGEL, Circuit Judge.

Mrs. Edith Oliver, plaintiff-appellee, brought this action as administratrix of the estate of Lucheon Oliver, deceased, in which she sought damages by reason of the wrongful death of her husband against Hallett Construction Company, a corporation, defendant-appellant. The case was tried to a jury, which returned verdicts as follows: Mrs. Edith Oliver, administratrix of the estate of Lucheon Oliver, $3,000; Mrs. Edith Oliver individually, $5,000; Samuel Oliver (son of deceased), $28,760; Judy Lynn Oliver (daughter of the deceased), $28,760.

This case was originally commenced in the Circuit Court of St. Francis County, Arkansas. Diversity of citizenship and the requisite amount being involved, the case was removed to federal court. No jurisdictional issues are involved. The law of the State of Arkansas controls.

Lucheon Oliver, the deceased, died as the result of an accident occurring on October 7, 1966, late in the afternoon, apparently between 5:30 and 6:00 o'clock P.M. The deceased was a fence inspector employed by the Arkansas Highway Department. He was driving a pickup truck owned by the Highway Department and apparently was engaged in the business of his employer at the time.¹

The appellant had a contract with the Arkansas Highway Department to construct a portion of what is now Interstate Highway No. 40. The south roadway, which was to carry double lanes of eastbound traffic, was approximately 50 feet wide and at the time spread with gravel. Plans provided for a concrete slab of 24 feet in width to be constructed thereon. At this stage of completion workmen engaged in the construction of the highway and others, such as the deceased, were permitted to drive vehicles on the graveled portion of the highway. The highway itself was not open to travel by the public. The deceased's job as a fence inspector was to drive along the highways under construction or repair and check to see that the fences alongside and on access roads were properly maintained. In other words, the deceased had a right to be where he was, using the highway even though it was still under construction and the public excluded therefrom.

For some substantial period of time, estimated at from two weeks to a month or longer, the appellant had maintained a stockpile of gravel in the center of the highway under construction. This stockpile was being added to and hauled from continuously. To it was hauled sufficient gravel to cover that part of the highway upon which Hallett was engaged. The size of this stockpile varied. At its largest, it contained approximately 2,000 or more cubic yards and was approximately fifteen feet wide by a hundred feet long and eight or ten feet high. The stockpile as established by the appellant was approximately in the center of the highway, leaving ample room on either side to permit dump trucks to be loaded from the stockpile and the gravel to be hauled away for spreading. Other vehicles, whose drivers had business there, were allowed to use or traverse the graveled highway on either side of the stockpile. According to Hallett's records, on the day of the accident the stockpile had been substantially reduced by the hauling therefrom of 288 cubic yards of gravel, which had been taken away and spread. It was estimated by witnesses that by the end of the work day October 7, 1966, the stockpile was approximately four feet high, ten feet long and four feet wide and to have contained from approximately five or six cubic yards, according to one witness, and ten to fifteen cubic yards of gravel, according to another.

There were no eyewitnesses to the accident. By deduction, however, we know that the deceased was driving a Highway Department pickup truck which he used in his work, in an easterly direction and apparently was engaged in the course of his employment of inspecting the fences which paralleled the highway and blocked out access roads. While so doing he ran into the stockpile located in the center of the highway, receiving injuries which resulted in his death.

It is not known exactly what time the accident took place, but from the witnesses who arrived after it happened it must have taken place somewhere between 5:30 and 6:00 o'clock P.M. In that connection we take judicial notice of the fact that on October 7, 1966, at Little Rock, Arkansas, sundown was at 5:45 P.M. Central Standard Time and that the Arkansas statute governing the use of lights on vehicles provided in pertinent part, Ark.Stat.1947 Ann., § 75-702:

"When lighted lamps are required. — (a) Every vehicle upon a highway within this State at any time from a half hour after sunset to a half hour before sunrise and at any other time when there is not sufficient light to render clearly discernible persons and vehicles on the highway at a distance of 500 feet ahead shall display lighted lamps and illuminating devices as hereinafter respectively required for different classes of vehicles, subject to exceptions with respect to parked vehicles as hereinafter stated."

Paul Klink, the first witness to arrive at the scene of the accident, found the deceased outside to the left of his truck and lying on the ground. The front end of the deceased's truck was damaged, one tire was flat and one light was still on and the blinker lights were on. It was established by other witnesses that after striking the gravel stockpile, the deceased's pickup had traveled on in an easterly direction for a distance estimated variously at 60, 80 and 100 feet.

From the judgments following the verdicts of the jury, Hallett has appealed. The contractor's main contention is that there was an utter failure to establish negligence on the part of the appellant which could have been a proximate cause of the accident, but if that be wrong, that the deceased was nevertheless guilty of contributory negligence and that such contributory negligence of the deceased was equal to or greater than that of Hallett and accordingly barred recovery as a matter of law. Additional grounds are raised by the appellant but inasmuch as we think a resolution of the contributory negligence issue is dispositive of the case, we find it unnecessary to discuss them.

In an attempt to establish negligence on the part of the appellant, there is stressed the fact that the pile of gravel into which Oliver ran was much diminished in size on the day of the accident, was of the same color as the road and therefore might be difficult to see or discern, particularly near the end of the daylight hours. It is pointed out that there were no flares, barricades or other warning signs set out at the ends of the gravel stockpile to warn travelers of its presence and it is contended that failure to take these precautions amounted to an omission of due care and additionally created a trap for the decedent which was a proximate cause of the accident and of his death. It is also pointed out that an endloader used in connection with the stockpile of gravel had been removed from the scene the afternoon of the accident.

The uncontradicted testimony established: (1) That the gravel stockpile itself was self-evident; (2) that the presence of the stockpile was a necessary and proper incident of highway construction; (3) that the stockpile was located at an obvious place and that room had been left on either side of it for those who worked there or had a right to be there on business; (4) that the appellant was not obligated to store its gravel in any different fashion; (5) that the highway was still under construction, and was not and never had been opened to the public; (6) that the deceased had been employed by the Arkansas Highway Department for some substantial period of time; (7) that the deceased was thoroughly familiar with the existence and presence of the gravel stockpile in the center of the highway being constructed; (8) that the deceased had passed the stockpile on many occasions prior to the time of the accident and that on the day of the accident was seen to have traveled that portion of the highway several times; (9) that the witness Fred Turner saw the deceased several times the day of the accident, the last occasion being "around six o'clock"; (10) that at such time the deceased was seen traveling in an easterly direction toward the gravel stockpile, that he was driving in the right lane of the highway being constructed and that according to Turner he was traveling at a rate of speed of "at the least" 60 miles per hour, and was watching the fences on the south, which would be to the deceased's right.

As an appellate court, it is our duty to take that view of the evidence which tends to support the jury's verdicts and we must accept as established all reasonable inferences arising from the testimony and which tend to sustain such verdicts.

This suit is based upon the alleged negligence of the defendant-appellant. The burden of establishing negligence is, of course, on the part of the plaintiff-appellee. As in most jurisdictions,

"negligence, under Arkansas law, is the failure to do that which a person of ordinary care and prudence would do under the same or similar circumstances, or the doing of which a person of ordinary care and prudence would not do under the same or similar circumstances. St. Louis-San Francisco Ry. Co. v. Ward, 197 Ark. 520, 524, 124 S.W.2d 975; Self v. Kirkpatrick, 194 Ark. 1014, 1022, 110 S.W.2d 13." Kisor v. Tulsa Rendering Co.

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