Ozan Lumber Company v. Tidwell

• Decision Date: 16 December 1946
• Docket Number: 4-8021
• Citation: 198 S.W.2d 182,210 Ark. 942
• Parties: Ozan Lumber Company v. Tidwell
• Court: Arkansas Supreme Court

198 S.W.2d 182

210 Ark. 942

Ozan Lumber Company v. Tidwell

No. 4-8021

Supreme Court of Arkansas

December 16, 1946

Appeal from Nevada Circuit Court; Dexter Bush, Judge.

Affirmed if Remittitur is Entered.

McRae & Tompkins and S. Hubert Mayes, for appellant.

William F. Denman and Tom W. Campbell, for appellee.

OPINION

Minor W. Millwee, Justice.

Appellee, Clarence Tidwell, as plaintiff in the circuit court recovered judgment for $ 15,000 against appellant, Ozan Lumber Company, for personal injuries alleged to have been sustained in a collision between a truck driven by appellee and a truck and log trailer operated by C. M Kirby as the agent and servant of appellant. At the conclusion of the testimony on behalf of appellee, and at the conclusion of all the testimony, appellant requested an instructed verdict in its favor. The refusal of the trial court to grant these requests is the first assignment of error urged by appellant for reversal of the judgment.

In pursuance of this contention it is first insisted that the only conclusion warranted by the evidence, even when given its strongest probative force in favor of appellee, is that appellee was guilty of contributory negligence as a matter of law.

The collision occurred on a gravel highway known as the South Cale Road at a point about two and one-half miles south of Prescott, Arkansas. Appellee testified that on the afternoon of August 27, 1945, he was driving his light "pick-up" truck on the Blakely Mill Road which intersects the South Cale Road at the point where the collision occurred. As he approached within about 100 feet of the intersection to drive to Prescott, he saw the cab of a truck being driven by Kirby from Prescott at a fast rate of speed approaching the intersection. Another car had entered the intersection about 80 feet ahead of appellee going toward Prescott. After appellee passed some lumber stacked in the corner of a field near the intersection, and when he was about 20 feet from the intersection, he again saw the approaching truck about 100 feet up the road. He approached the intersection in second gear, stopped his truck and turned off the motor with the front end of the truck extending about 12 inches over the edge of the road Kirby was traveling. The log truck was about 60 feet away when he stopped, and there was nothing to obstruct the view of either driver at this point.

The log truck was equipped with rear dual wheels, which extended further out from the truck than the front wheels. The front wheel of the log truck missed the truck driven by appellee but the right rear wheel caught the front part of appellee's truck knocking it around, and resulting in appellee's injuries. Appellee also testified that his brakes were in good condition and that he could have stopped his truck within 10 feet at the speed he was traveling as he approached the intersection.

John A. Davis, a Prescott merchant, testified he was walking to his car near the Blakely millyard when he stopped to talk with appellee shortly before he started toward the intersection. This witness corroborated the testimony of appellee as to the position of his truck immediately before the collision and the view of one approaching the highway. He also testified that the road was 18 feet wide where the collision occurred. The log truck stopped 50 or 60 feet from the intersection after the collision and the front end of appellee's truck was struck by the right rear dual wheel of the log truck.

It is earnestly contended by appellant that under this testimony we should hold appellee guilty of contributory negligence as a matter of law in proceeding to the edge of the highway when he could have stopped his truck at a safe distance from the road, and thereby avoided the collision. Appellants say this is especially true in view of the testimony of Kirby that the right wheels of the truck he was driving were 3 or 4 feet from the right edge of the road, and that appellee's truck struck the rear wheel of his truck. It is insisted that it must be deduced that appellee continued into the highway into the truck driven by Kirby, and that any other conclusion is contrary to the physical facts and in violation of the rule followed in Mo. Pac. Railroad Co. v. Hancock, 195 Ark. 414, 113 S.W.2d 489.

We cannot agree with this contention. The deductions we are asked to make are dependent upon the truthfulness of the witness Kirby, who contradicted the testimony on behalf of appellee as to how the accident occurred. It was the province of the jury to consider this testimony along with all the other facts and circumstances in determining whether appellee was guilty of contributory negligence. We are unwilling to say that a driver is guilty of contributory negligence as a matter of law in stopping his truck with the front end 12 inches over the edge of a road 18 feet wide in full view of an approaching vehicle under the circumstances disclosed by the evidence on behalf of appellee.

This court has consistently held that where fairminded men might honestly differ as to conclusions to be drawn from facts, whether controverted or incontroverted, the question at issue should go to the jury. St. L. I. M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S.W. 786; Coca-Cola Bottling Co. v. Shipp, 174 Ark. 130, 297 S.W. 856; D. F. Jones Construction Co., Inc., v. Lewis, 193 Ark. 130, 98 S.W.2d 874. Whether plaintiffs were guilty of contributory negligence in stopping their buggy unequipped with tail lights on the shoulder of a paved highway at night when the buggy was struck by the automobile of defendant was held to be a question for the jury, in the case of Duckworth v. Stephens, 182 Ark. 161, 30 S.W.2d 840.

In a discussion of the rule announced in the case of Coca-Cola Bottling Co. v. Shipp, supra, Mr. Justice Butler, speaking for the court in the Duckworth case, said: "The most this court decided, and the rule it there laid down was that one driving an automobile at night too fast to stop within the range of his own lights in case of a collision is not guilty of negligence as a matter of law, but that each case must be considered in the light of its own peculiar state of facts and circumstances, the test being what an ordinarily prudent person would have done under circumstances as they then appeared to exist; and that whether it was negligence to leave a car parked in the nighttime without lights was also not negligence per se but was a circumstance to be considered with the other attendant circumstances in determining whether it was negligence or not. We have frequently held that violations of the State traffic statutes are merely evidentiary of negligence and not conclusive of the issue. Pollock v. Hamm, 177 Ark. 348, 6 S.W.2d 541; Mays v. Ritchie Gro. Co., 177 Ark. 35, 5 S.W.2d 728. And in the case at bar the failure of appellees to light their buggy was a question for the jury whether under the circumstances Duckworth was, or was not, guilty of negligence in failing to discover the appellees, and whether appellees were guilty of contributory negligence in stopping the buggy without displaying tail lights. These questions were submitted to the jury under proper instructions. In these particulars the failure to attach lights to the buggy was a matter of proper consideration, but it did not relieve Duckworth from the duty of acting as a reasonably prudent person in the operation of his car and of keeping such lookout as prudence for his own safety and humanity for the safety of others could dictate. We therefore hold that the court did not err in its declaration in this regard." See, also, Bean v. Coffee, 169 Ark. 1052, 277 S.W. 522; Ocker v. Nix, 202 Ark. 1064, 155 S.W.2d 58; England v. White, 202 Ark. 1155, 155 S.W.2d 576; Lewis v. Shackelford, 203 Ark. 500, 157 S.W.2d 509. In the instant case, the fact that appellee stopped his truck on the edge of the road did not relieve Kirby from the duty of operating the log truck and trailer in a prudent manner, or keeping a proper lookout for other vehicles using the road. Under the testimony adduced on the issue, we cannot say that appellee was guilty of contributory negligence as a matter of law, but this question was one properly to be determined by the jury.

A more serious question is presented in appellant's second contention that the proof is insufficient to show that the driver of the truck was acting as the agent or employee of appellant at the time of the collision. Appellant says that all the evidence shows that it had no supervision or control over the activities of the driver, Kirby, who was engaged as an independent contractor and for whose negligence appellant is not liable.

The evidence discloses that the Negro, Kirby, worked for appellant as a log cutter from 1940 until February, 1945, when he started driving the truck involved in the collision. He testified that he bought the truck from appellant on June 1, 1945, and executed a purchase money note for $ 1,850 payable at the rate of $ 20 each Saturday. Under the terms of this note, appellant retained title to the truck until the note was fully paid, and in the event of repossession upon default of three weekly payments, all sums paid by Kirby would be deemed a reasonable rental for the truck and trailer during the time he had held possession. Appellant exacted no down payment at the time of the purchase, and Kirby owned no other property. While no cash payments had been made on the truck at the time of the trial, Kirby was given credit on the note for what the company owed him from time to time for hauling logs. When he bought the truck it had another driver's name and a number on it, and appellant had these painted off while the truck was in a shop.

Kirby listed the names of his log...