Price v. Daugherty, 5--6056
| Decision Date | 13 November 1972 |
| Docket Number | No. 5--6056,5--6056 |
| Citation | 486 S.W.2d 528,253 Ark. 421 |
| Court | Arkansas Supreme Court |
| Parties | Troy PRICE et ux., Appellants, v. Ray DAUGHERTY et al., Appellees. |
Brockman, Brockman & Gunti, Pine Bluff, for appellants.
Bridges, Young, Matthews & Davis, Reinberger, Eilbott, Smith & Staten, Pine Bluff, for appellees.
This is an action brought by the appellants, husband and wife, to recover damages for the wrongful death of their 19-year-old son, Troy Glyn Price. The appellees, defendants below, are Ray Daugherty, on whose farm young Price was working at the time of his accidental death, and W. T. Carter, whose welding shop made the stump grinder that was involved in the accident. In appealing from a verdict and judgment for the defendants the appellants contend primarily that the court erroneously instructed the jury.
The facts must be narrated in some detail. A stump grinder is used to grind away low stumps on cleared land. The stump grinder consists essentially of a platform that has a belt-driven drum at the front end, two rubber tires at the rear end, and a powerful motor, mounted on the platform, that drives the grinding apparatus. The latter is a cylindrical sheet-iron drum which has cutting teeth affixed to the outer surface of the drum.
The entire unit is pulled by a tractor, on which the operator is seated. In grinding stumps the operator first starts the stump grinder's own motor, which revolves at a pre-set speed. The operator then mounts the tractor and drives to a stump, previously marked in some way to show its location. The toothed grinding drum is either lowered to the stump from above or brought slowly into contact with it from the side or rear, the operator remaining on the tractor during the process. In only a few minutes the powerfully driven teeth grind away the exposed part of the stump.
The fatal accident happened in the late afternoon, while young Price was grinding stumps by himself. The record makes it clear that the revolving toothed drum came to pieces, apparently because it was defectively welded together. The disintegrating parts of the drum were thrown forward and upward with great force. Price was killed immediately by being struck in the head by a flying piece of metal. The tractor seat was also damaged. When Price's body was discovered a few minutes later it was lying near what remained of the stump grinder, whose motor was still running. The tractor had become disengaged from the stump grinding unit and had traveled by itself for an eighth of a mile or more before coming to rest in a canal.
First, the appellants contend that the court erred, in the light of the facts, in submitting to the jury the doctrine of assumption of risk, AMI 612 (Civil, 1965) being given. That instruction told the jury that if a dangerous situation existed, which was known to Troy Glyn Price, and if he voluntarily exposed himself to that risk, the jury should answer 'Yes' to an interrogatory on assumption of risk. The interrogatory was in fact so answered.
We agree that the court erred. Assumption of risk occurs only when the injured person actually knows and appreciates the danger. The standard is a subjective one, being based upon what the particular person in fact sees, knows, understands, and appreciates. McDonald v. Hickman, 252 Ark. 300, 478 S.W.2d 753 (1972).
Here there is proof that a stump grinder is a highly dangerous machine, but that testimony had to do with the normal operation of a well-built stump grinder. Needless to say, the defendants did not attempt to prove that the stump grinder which killed young Price was so defectively put together that it was for that reason highly dangerous. There is no proof that Price was aware of the defects in the machine. Yet that is the precise hazard that he had to be aware of in order to assume its risk.
There is an abundance of testimony from an expert witness that the grinding drum flew apart because dit was poorly welded together. That, however, was a latent defect, to be detected only by one having some knowledge of...
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Baxter v. Grobmyer Bros. Const. Co., 81-181
...case law assumption of the risk covers only the defendant's conduct and not dangerous situations generally. He cites Price v. Daugherty, 253 Ark. 421, 486 S.W.2d 528 (1972), but we do not find this proposition supported by either the holding or the dictum of Price, where we reversed the tri......
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Western Cas. & Sur. Co. v. Smith-Caldwell Drug Store, Inc.
...put on evidence and failed to renew the motion after his evidence. Appellee cites the correct rule for jury trials. Price v. Daugherty, 253 Ark. 421, 486 S.W.2d 528 (1972); McGehee Hatchery v. Reed et al., 248 Ark. 104, 450 S.W.2d 5 (1970), and Granite Mountain Rest Home v. Schwarz, Adm'r, ......
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...had knowledge of the specific danger and that he fully comprehended and appreciated that danger. As said in Price v. Daughtery, 253 Ark. 421, 486 S.W.2d 528 (1972): Assumption of risk occurs only when the injured person actually knows and appreciates the danger. The standard is a subjective......
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Lambert v. Will Bros. Co., Inc., 78-1365
...in fact sees, knows, understands, and appreciates. McDonald v. Hickman, 252 Ark. 300, 478 S.W.2d 753 (1972). Price v. Daugherty, 253 Ark. 421, 486 S.W.2d 528, 529 (1972). In McDonald v. Hickman, 252 Ark. 300, 478 S.W.2d 753 (1972), the Arkansas Supreme Court Assumption of risk, a harsh doct......