Rocky Mountain Trucking Co. v. Taylor, 2855

• Citation: 79 Wyo. 461,335 P.2d 448
• Decision Date: 17 February 1959
• Docket Number: No. 2855,2855
• Parties: ROCKY MOUNTAIN TRUCKING COMPANY, a Wyoming Corporation, and Robert Jordan, Appellants (Defendants below), v. Donald Dean TAYLOR, Appellee (Plaintiff below).
• Court: United States State Supreme Court of Wyoming

Page 448

335 P.2d 448

79 Wyo. 461

ROCKY MOUNTAIN TRUCKING COMPANY, a Wyoming Corporation, and Robert Jordan, Appellants (Defendants below), v. Donald Dean TAYLOR, Appellee (Plaintiff below).

No. 2855.

Supreme Court of Wyoming.

Feb. 17, 1959.

William S. Bon of Swanton & Bon, Robert J. Murphy of Mahoney, Murphy & Emery, Casper, for appellants.

Robert R. Rose, Jr., and Arthur F. Fisher, of Rose & Rose, Casper, for respondent.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Justice HARNSBERGER delivered the opinion of the court.

The plaintiff below was given a $25,913.35 judgment, with costs against defendants, as damages for injuries he sustained when a large metal tank, which was being lifted by a winch operated by defendant Jorden, was suddenly lowered crushing plaintiff's hand. A jury awarded plaintiff $35,046.05, but the court reduced this to $25,913.35, and the defendants appeal.

The facts relied upon to establish defendants' liability are not disputed but the sufficiency of that evidence is challenged. In addition, appellants claim error because: (1) Evidence of negligence not pleaded was admitted; (2) defendants' motions for directed verdict, to set aside the judgment and for judgment notwithstanding the verdict were overruled, which motions were based upon the alleged insufficiency of plaintiff's evidence, his contributory negligence and assumption of risk; (3) certain medical testimony was improperly admitted; (4) the award was excessive; (5) certain instructions were given or refused; and (6) a new trial was denied.

From the evidence it is clear that as it had done on previous occasions, the Fitzpatrick Drilling Company employed the Rocky Mountain Trucking Company to move one of its drilling rigs. This included moving the tank, to which reference has been made, to a new location and leveling it. In performing that service it was customary that some of the services of the trucking company be performed at the direction of the drilling company's driller. In consequence, the trucking company's employee Jordan responded to the driller's direction and used the trucking company's truck equipped with 'gin poles' and a winch to raise the tank about 18 inches so that leveling boards could be placed beneath it. To do this Jordan backed the truck up to the tank; that drilling company's employee hooked the winchline onto the tank and Jordan operated the mechanism which lifted the tank. The plaintiff was employed by the drilling company as a 'roughneck' and his duties required him to do anything the driller told him to do. Plaintiff testified he had helped hook the winchline onto the tank when he received instruction from the driller to get blocking and put in underneath the tank; that he went to get the blocking and when he returned the tank had been raised about 12 inches; that he kneeled down to place a 2"' X 4"' board about 2 to 4 feet long underneath the tank; that this required him to place his hand beneath the raised tank in order to smooth out some dirt clods and rough spots when within 30 or 40 seconds, without any warning, the tank dropped on his hand. Although Jordan knew that his raising the tank with the winch was to permit someone to put boards beneath it, he carelessly dropped or suddenly lowered the tank without first ascertaining, or even attempting to ascertain, whether whoever was placing the leveling boards was in the clear and beyond danger. This evidence was sufficient to establish the liability of both defendants.

In an attempt to establish the contributory negligence of plaintiff and his assumption of risk, defendants introduced what purports to be the expert opinion testimony of a driller that plaintiff need not have placed his hand underneath the tank. Even if we were to concede such opinion was properly received as being acceptable expert testimony, when it is remembered that it was given in answer to a question which did not describe all the conditions under which the blocking was to be done, and that the jury had before it the plaintiff's own testimony which, if believed, indicated the reasonable necessity of plaintiff doing his job in the manner in which he did, the presence of the contributory negligence relied upon rested solely with the determination of the jury. That it obviously elected to accept the plaintiff's version rather than the so-called 'expert's' opinion, which was expressed without taking into consideration all the facts, was its right and privilege and is beyond criticism.

As is somewhat fully discussed under the title 'Assumption of Risk' in 56 C.J.S. Master and Servant § 357, commencing at page 1148, the defenses of assumption of risk and contributory negligence are so closely allied that courts have experienced considerable difficulty in attempting to draw a maintainable line of distinction between them. Different courts have said it lies in degree rather than in kind; that the point of difference occurs where the danger is so obvious and imminent that no one of ordinary prudence would encounter it; that the one is based in contract and the other in tort; that contributory negligence involves some fault or breach of duty on the employee's part while assumption of risk may exist independent of any employee negligence; and many other points of more or less fine distinctions are suggested. We do not propose or deem it necessary to add our own concept of what distinguishes the one from the other nor do we specifically adopt as our own any one of the distinctions announced by other courts. We content ourselves by saying that the acceptance by a worker of employment in such an extrahazardous employment as that entailed in oil-field work does not serve to exonerate an employer from liability for negligent acts, whether such acts be those of the employer or of the employer's servant. This, we think, adversely disposes of the assumption of risk defense.

We might also add that appellants' suggestion that the action of Jordan, in suddenly and without warning lowering the tank while he knew the leveling operation was in progress and without his being apprised in some manner that it was safe to do so and would not endanger those who were assisting in the work, was not negligent because it was in accordance with customary practice cannot be accepted. An operational practice, although long indulged in, but which does not afford reasonable protection for those engaged in that operation, does not relieve from liability those responsible if it results in negligently causing injury or damage.

Appellants' claim that evidence was improperly admitted of a type of negligence not pleaded is not justified by the record. It is insisted that evidence, tending to show Jordan failed to keep a proper lookout, wait for instructions or to ascertain whether it was clear to lower the tank, was improperly received because it was not within the specific acts of negligence pleaded. While the rule in this State is not as unqualified as that contended for here, and is subject to certain exceptions, all we need say to dispose of the point is that plaintiff's allegation that defendant failed 'to properly control and operate the winch' was sufficiently broad to admit the criticized evidence.

What we have said moves us to reject appellants' claim that their several motions were erroneously overruled.

Appellants next say there was error in allowing plaintiff's doctor-witness to testify in terms of percentage of loss of plaintiff's hand and more especially his stating the percentage of permanent partial disability suffered by plaintiff as a result of the injury to that member. We are then referred to '20 Am.Jur. [79 Wyo. 476] p. 650'. We find nothing in this text to give comfort to the appellants. On the other hand, in the same work in 20 Am.Jur., Evidence, § 862, pp. 723, 724, it is stated a physician may give his opinion as to the general effect of an injury upon the body, and the duration, permanency, and extent to which an injury will affect a person's ability to perform labor, as well as noting that such medical experts may in so testifying refer to medical writers as the doctor did in this case. Also in 32 C.J.S. Evidence § 534, pp. 245, 246, substantially the same statements are made and what is said in both of these works is amply supported by the cases and authorities cited, many of which expressly give approval where the doctor voices his opinion as to the degree or extent of disability in terms of percentage. See also Cropper v. Titanium Pigment Co., 8 Cir., 47 F.2d 1038, 1043, 1044, 78 A.L.R. 737, 745, 746, in which the court quotes with favor Mr. Justice Van Devanter's pronouncement in United States Smelting Co. v. Parry, 8 Cir., 166 F. 407, 92 C.C.A. 159. This statement lucidly and forcefully explains why such evidence is admissible and why it does not usurp the province of the jury but is accepted to aid them in performing their function.

The only case cited by appellants in support of their position that even an expert witness may not testify in terms of percentage as to the loss of a claimant's body as a whole is Pocahontas Mining Co. v. Industrial Commission, 301 Ill. 462, 134 N.E. 160, 163. We find it difficult to understand that court's reasoning when it says in one breath that it is proper for an expert to testify to the amount or extent of a disability and in the next says the witness cannot answer in direct terms as to what percentage of loss he has sustained. Such a statement is certainly not persuasive. The argument of appellants that testimony of percentage of disability is a usurpation of the province of the jury is sufficiently answered by the statement of Mr. Justice Van Devanter, supra, heretofore referred to.

In any event the question seems to have been settled adversely to appellants' position by the decision of this court in Sakamoto v. Kemmerer Coal Co., 36 Wyo. 325, 332, 255 P. 356, 358, where approval was given to the language used in McDonald...