Postal Telegraph-Cable Company v. White
Decision Date | 11 December 1933 |
Docket Number | 4-3234 |
Citation | 66 S.W.2d 642,188 Ark. 361 |
Parties | POSTAL TELEGRAPH-CABLE COMPANY v. WHITE |
Court | Arkansas Supreme Court |
Appeal from St. Francis Circuit Court; W. D. Davenport, Judge reversed.
STATEMENT BY THE COURT.
On and prior to February 14, 1930, appellee, E. A. White, was a lineman in the employ of appellant at Forrest City in this State. On said date it became his duty to perform certain duties at Jonesboro, and to this end he went to Jonesboro. To accomplish this purpose, in the manner required, appellee employed his brother, Clyde White, to accompany him on this trip and to assist him in his work. While on their return trip from Jonesboro to Forrest City, a collision occurred between the Ford truck driven by appellee and a touring car driven by one Holland. Appellee's version of the collision was to the effect that the wreck was caused by his brother, Clyde White, suddenly taking hold of or "grabbing" the steering wheel of the truck being driven by appellee and turning same into the path of the touring car driven by Holland.
Appellant defended the action on the following theories: First, that appellee assumed the risk of the dangers incident to the injuries complained of; second, that appellee was guilty of contributory negligence in causing the collision; third, that appellee had released and acquitted his cause of action by the execution of a release in proper form.
On trial in the St. Francis Circuit Court, the testimony tended to establish the following facts in behalf of appellee: That appellee was a lineman in the employ of appellant in that territory, and was authorized to employ assistants in the performance of his duties. In the discharge of this duty, he employed his brother, Clyde White, to assist him. On February 14, 1930, appellee and his brother, Clyde White, went to Jonesboro for the purpose of performing certain duties for appellant, and on their return from Jonesboro to Forrest City, a collision occurred between the truck driven by appellee and a touring car driven by one Holland; that this wreck or collision was caused by Clyde White, the brother of appellee, suddenly taking hold of the steering wheel of the truck driven by appellee and steering same into the path of the touring car. The testimony further tended to show that appellee was seriously and permanently injured by reason of the collision, and that Clyde White, his brother, lost his life therein. The testimony on behalf of appellant on the affirmative defense of the release of the cause of action was to the effect that, sometime prior to February 14, 1930 appellant had promulgated and devised a scheme of compensation for employees injured while in performance of duty; that this scheme was fully described in a certain "blue book" which was issued by appellant and delivered to all the employees in its service; that one of these blue books was delivered to appellee long prior to his injury; that, within a short time after appellee was injured in the collision, it submitted a proposition to appellee, by the terms of which he was required to accept or reject the employees' compensation offered in said blue book; that appellee voluntarily accepted the terms and conditions as provided for in said blue book, and executed a release in favor of appellant for the injuries complained of.
At the close of the testimony introduced by the respective parties the trial court submitted the cause of action to the jury, in behalf of appellee, upon the following instructions:
On behalf of appellant, the trial court gave correct instructions on assumed risk and contributory negligence. Also it clearly and properly instructed the jury in reference to the release and the alleged contributory negligence of appellee which was alleged to have concurred in effecting the collision.
The jury returned a verdict in favor of appellee, and against appellant, in the sum of $ 10,000, and this appeal is prosecuted to reverse the judgment entered thereon.
Case reversed. Judgment reversed and cause dismissed.
Samuel C. Bowman, Mann & Mann and Rose, Hemingway, Cantrell & Loughborough, for appellant.
Fred A. Isgrig, S. S. Hargraves and Winstead Johnson, for appellee.
JOHNSON, C. J., (after stating the facts).
This case must be reversed because of the error of the trial court in giving to the jury instructions Nos. 1, 2 and 3 on behalf of appellee. It will be noted that instruction No. 1, given on behalf of appellee, ignores all the defenses offered by appellant, that is to say, the defenses of assumption of risk, contributory negligence and the release of liability. Each of these instructions directed the jury to return a verdict in favor of appellee on the hypothesis therein stated, wholly ignoring the defenses of assumption of risk contributory negligence and a valid...
To continue reading
Request your trial