Standard Oil Co., of Louisiana v. Webb

• Decision Date: 04 October 1937
• Docket Number: 4-4701
• Citation: 108 S.W.2d 1086,194 Ark. 569
• Parties: STANDARD OIL COMPANY OF LOUISIANA v. WEBB
• Court: Arkansas Supreme Court

108 S.W.2d 1086

194 Ark. 569

STANDARD OIL COMPANY OF LOUISIANA v. WEBB

4-4701

Supreme Court of Arkansas

October 4, 1937

Appeal from Sevier Circuit Court; A. P. Steel, Judge; affirmed.

Judgment affirmed.

Cecil Morgan and Gaughan, Sifford, Godwin & Gaughan, for appellant.

Gordon B. Carlton, J. S. Lake and Winfred Lake, for appellee.

OPINION

BUTLER, J.

On the trial of the case in the lower court there was a verdict and judgment in favor of the appellee from which this appeal is duly and properly prosecuted.

The principal questions raised and argued relate to the refusal of the trial court to direct a verdict in favor of the appellant. The requested instruction was based on the contentions that appellee's injury was the result of his own want of care, and the result of the risk assumed by him. There is no contention that the evidence accepted by the jury was not of a substantial nature and sufficient to sustain the verdict, but the argument is made that if this evidence be accepted as true, it affirmatively appears that it sustains the contentions made by appellant relative to appellee's negligence and the assumption by him of the risk attendant upon the operation which resulted in his injury.

There is a decided conflict in the testimony, but the evidence stated most strongly for the appellee establishes the following facts: appellee's injury occurred while he was in the employ of the Standard Pipe Line Company Incorporated. This company was merged or taken over by the appellant company which assumed liability for all claims against it. Previous to his employment with the Standard Pipe Line Company, appellee had been a farm laborer. He began to work for the pipe line company about the first of June, 1936 and was assigned work on ordinary jobs as a common laborer. He did this work for a week or two, and was then assigned as a helper to a certain truck driver, one Swanders. This required the hauling of supplies from the warehouse to various parts of the line where the machines were at work. He worked at this a week, and was then assigned as helper to another truck driver, one Parker. Appellee was instructed to obey the orders of the truck drivers with whom he worked and he performed the same duties with both drivers. He received his injury on the 16th day of June, 1936, for which he brought suit and recovered damages.

On that day, appellee and his superior, Parker, went to appellant's warehouse for the purpose of loading steel drums containing gasoline, weighing 450 or 500 pounds each. The ordinary way of performing this work was to back the truck up to the edge of the concrete floor of the warehouse, then using a plank, 2 x 10, about ten feet long, recently procured and placed in the warehouse for that purpose. The floor of the truck was about 3 1/2 feet above the floor of the warehouse. In loading the drums of gasoline, one end of this plank was placed upon the floor of the warehouse and the other upon the floor of the truck. The drums were then rolled to the end of the plank and the driver of the truck and appellee would place themselves at opposite ends of the drums and roll them upward on the plank into the truck. This is the manner in which this work had been performed previous to the time of appellee's injury.

Appellee had never been required to load a drum by himself, but had always been assisted by the driver of the truck. On this occasion, he and Parker had loaded one or two drums in the usual manner when Parker told appellee to load another as he was going back into the warehouse. Appellee told Parker he didn't believe he could load the gasoline by himself as it was too heavy. Parker made no reply, but proceeded into the warehouse. Appellee rolled a drum to the end of the plank and waited for Parker's return. He came back in two or three minutes and said, in effect, "You'd better load that gasoline or we will get a man that will." Appellee proceeded then to attempt to roll the drum up the plank without help. In doing this, he placed the center of the drum on the plank, got behind it and straddled the plank, and rolled it as far as he could while in that position. At this time Parker had again gone into the warehouse and appellee, believing that he could get the drum no further up the plank while straddling it, attempted to change his position by moving his right leg over to the left side. While in the act of changing his position, at the same time trying to hold the drum in its position on the plank, appellee lost his balance and suffered an injury to his back. Just about this time he observed grease spots on the plank which he had not before noticed. Appellee held the drum until another employee came to his assistance and, together, they rolled the drum into the truck.

Since there is no complaint made as to the amount of damages awarded, it becomes unnecessary to discuss the nature and extent of the injury claimed to have been sustained by appellee.

On the question of appellee's negligence, appellant contends that the injury did not result from the order of Parker to appellee to roll the drum unassisted, but from the careless and negligent manner in which such order was undertaken. One of the errors complained of in the motion for a new trial was the refusal of the trial court to direct the jury that if it should find appellee negligent in changing his position from astride the plank while attempting to hold the drum of gasoline and that such negligence was the sole cause of his injury, it would be the duty of the jury to find for the appellant. The instruction overlooked the fact that appellee was acting under the express order of his superior, Parker, who, if not present at the instant when his order was being obeyed, had been but a moment before and had personal knowledge of the weight of the object to be moved and the difficulty attendant upon the appellee in obeying his order. Parker testified that he had moved one of the drums unaided and he, therefore, knew better than appellee the trouble which might be encountered in carrying out the order.

The case of Kurn v. Faubus, 191 Ark. 232, 84 S.W.2d 602, relied on and quoted by appellant, is not in point, for in that case the servant did not undertake to follow the directions of his foreman, but to proceed by a different method which he was pursuing when injured.

Giving to the evidence of appellee its greatest weight in his favor it may be reasonably inferred that he was trying to obey the order of his superior under the fear that he would lose his job if he did not do so. While it is in proof on the part of the appellant that...