Western Truck Lines, Ltd. v. DuVaull

• Court: Arizona Supreme Court
• Writing for the Court: ROSS, J.
• Citation: Western Truck Lines, Ltd. v. DuVaull, 57 Ariz. 199, 112 P.2d 589 (Ariz. 1941)
• Decision Date: 21 April 1941
• Docket Number: Civil 4320
• Parties: WESTERN TRUCK LINES, LTD., a Corporation, and O. L. WELCH, Appellants, v. MARY ETHEL DuVAULL, Administratrix of the Estate of HARRY G. DuVAULL, Sometimes Called HARRE GERMAINE DuVAULL, Deceased Appellee

112 P.2d 589

57 Ariz. 199

WESTERN TRUCK LINES, LTD., a Corporation, and O. L. WELCH, Appellants, v. MARY ETHEL DuVAULL, Administratrix of the Estate of HARRY G. DuVAULL, Sometimes Called HARRE GERMAINE DuVAULL, Deceased Appellee

Civil No. 4320

Supreme Court of Arizona

April 21, 1941

APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment reversed and cause remanded with directions to dismiss the complaint.

Messrs Darnell, Pattee & Robertson, and Mr. Frederick G. Nave, for Appellants.

Messrs Houston & Dodd, for Appellee.

OPINION

ROSS, J.

The plaintiff, Mary Ethel DuVaull, administratrix of the estate of her deceased husband, Harry G. DuVaull, brought this action against the Western Truck Lines, Ltd., and O. L. Welch to recover damages for her husband's death, which she alleges was caused by the negligence of the defendants. The case was tried before a jury and resulted in a verdict and judgment in favor of plaintiff and against both defendants. The latter have appealed.

That the evidence does not support the verdict nor the judgment that the court erred in its instructions, in its rulings on the introduction of evidence, in its cross-examination of defendants' witness Ramsey, in refusing to give instructions and to submit requested interrogatories, are contentions of appellants.

There is no dispute as to what the evidence shows, the only question being whether under the law plaintiff has made out her case. The defendant truck line was engaged in the general warehouse and trucking business in the city of Tucson and defendant Welch was in its employ as a truck driver. DuVaull was a truck driver for the United States Veterans' Hospital at Tucson. On March 6, 1939, in line of duty, he went to the freight yards of defendant truck line for some freight belonging to his employer, but when he arrived he was informed that someone had called for and got the freight. He, nevertheless, spent some fifteen or twenty minutes visiting with employees of the truck line, with whom he was acquainted and on friendly terms. While he was there, defendant Welch drove into the premises a Chevrolet pickup truck loaded with six pieces of four-inch water pipe. It was while Welch was trying to get his truck into position in reference to the unloading dock, so that the pipe could be transferred from the truck to the dock without lifting it, that DuVaull was hurt. On the dock at the time were DuVaull and two employees of the truck line, one of whom was W. A. Ramsey. The pipe was considerably longer than the truck bed and in uneven lengths, two pieces protruding one and one-half feet further over the end of the truck bed than the other four. The bed of the truck and the top of the dock were not on a level, the latter being slightly higher, and the approach to the dock was a gradual but slight upgrade. Welch backed the truck up toward the dock and Ramsey, from the dock, placed the ends of the two over-length pieces of pipe on a hand truck so that as Welch backed they would slide onto the dock and allow the truck to back towards the dock, when the other pieces would also be in position to slide onto the dock. From this position of the truck, the end of which was two or three feet from the dock, we quote Welch as to what happened:

"... As I started to back up the motor died, and I was holding the truck with the foot brake and left it in reverse gear and was trying to start the motor of the truck, and as I looked back Mr. DuVaull was standing back of the truck or near the truck. He was out from behind the truck because the pipe was sticking out, and he was standing alongside the truck, and he evidently was going to lift this pipe up, the short pipe, and I turned around then to start the motor, and I did not see Mr. DuVaull any more until I heard him holler, and I jerked into second gear and pulled away from the dock. I stopped the truck and got out, and I saw Mr. DuVaull come out from behind the truck, kind of stumbled-like, I would say, and in pain, you could tell...."

This witness testified that the truck had a closed cab with a rear-view mirror and a rear window; that looking out of the back window he could see DuVaull; that he was not back of the truck when he started the motor; that apparently he stepped in there between the time he saw him and the time the truck started; that the last time he saw him he was to the right or opposite side from the driver's seat and "he was in the clear." He testified the truck had a good foot brake but that the emergency brake would not hold. He said he could keep one foot on the brake clutch and start the motor; that his foot slipped off the clutch and the truck jerked back just all at once.

The only other eyewitness to the accident was Ramsey, who testified that DuVaull was on the dock with him until just before or about the time Welch's motor died, when he jumped down off the dock to the right of the truck saying "something about giving Mr. Welch a hand with this short length of pipe that I couldn't reach at that time." "I says, 'Harry, I wouldn't get in there if I was you. That is monkey business.'" This witness testified that DuVaull, to start with, after he got on the ground, was on the right side of the truck but that he could not lift the pipe there so he went under the pipe and got on the left side, facing south, and tried to lift it, when the truck backed and caught him.

At the close of plaintiff's case and at the close of the whole case, defendants moved for a directed verdict on the ground that the evidence was insufficient to justify a recovery, and the court's refusal to grant this motion is made the basis of their first assignment.

In Hines v. Gale, 25 Ariz. 65, 213 P. 395, 397, we said:

"In considering the motion for instructed verdict at the close of the whole case, it was the duty of the court to appraise the evidence at its highest value in favor of the plaintiff. The effect of such motion was to admit the truth of all competent and relevant evidence introduced, tending to sustain plaintiff's cause of action, whether offered by plaintiff or defendant. If the evidence, when thus treated, established a right of recovery in plaintiff, it was the duty of the court to deny the motion."

It goes without saying that the obvious effort was to place the end of the truck against the side of the dock to facilitate the unloading of the pipe and, since the immediate approach to the dock was slightly upgrade, reverse power had to be utilized for that purpose. It was obvious that to go in between the truck and the dock during the operation was dangerous.

Plaintiff's theory is that Welch knew, or should have known, that DuVaull was between, or would go between, the truck and the dock to assist in adjusting the pieces of pipe to allow the truck to back against the dock, and that in the operation of the truck for that purpose he acted at his peril.

Defendants' position is that DuVaull was at the time and place a licensee or trespasser and (1) that defendants owed no duty to him except not to wilfully and wantonly injure him, and (2) that, at the time defendant Welch started his motor, DuVaull was in a safe place behind and at the right of the truck and defendants had a right to assume he would not step in the path of danger but would remain away therefrom.

There is nothing in the testimony of either Welch or Ramsey that stamps their recital of the facts as untrue and, if their testimony must be accepted as true, the only conclusion to be drawn is that DuVaull, without the consent and against the warning of these witnesses, voluntarily placed himself in the dangerous situation without...