Williams v. Cooper, 5-519

• Decision Date: 06 December 1954
• Docket Number: No. 5-519,5-519
• Parties: Keith WILLIAMS, Doing Business as Keith Williams Company, and John W. Arnold, Appellants, v. Arthur T. COOPER and the Travelers Insurance Co., Appellees.
• Court: Arkansas Supreme Court

Page 15

273 S.W.2d 15

224 Ark. 317

Keith WILLIAMS, Doing Business as Keith Williams Company, and John W. Arnold, Appellants, v. Arthur T. COOPER and the Travelers Insurance Co., Appellees.

No. 5-519.

Supreme Court of Arkansas.

Dec. 6, 1954.

Wright, Harrison, Lindsey & Upton, Little Rock, for appellant.

John H. Lookadoo, Arkadelphia, Shaver, Tackett & Jones, Texarkana, for appellee.

HOLT, Justice.

Appellee, Arthur T. Cooper, recovered judgment in the amount of $25,000 for personal injuries received while operating a bulldozer, as an employee of Bales and Kite, General Contractors, on February 2, 1953, at about 9 A.M. From the judgment is this appeal.

For reversal, appellants rely upon the following points: '(1) Defendants were entitled to a judgment as a matter of law. (2) The lower court erred in giving plaintiff's requested Instruction No. 1. (3) The lower court erred in giving plaintiff's requested Instruction No. 6.'

--(1)--

There appears to be little, if any, dispute as to material facts. As to the sufficiency of the evidence to support the verdict, it is our duty to determine only whether there was substantial testimony on which the jury could have based its verdict. We are not concerned with where the preponderance may lie. "The rule is that where fair-minded men might honestly differ as to the conclusion to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury." Armour & Company v. Rose, 183 Ark. 413, 36 S.W.2d 70, 74.

The record shows that Keith Williams was a subcontractor under Bales and Kite and J. W. Arnold was Keith Williams' employee. A truck belonging to Keith Williams was operated by Arnold, hauling gravel to a designated area, wherein appellee, Cooper, was operating a bulldozer and Keith Williams (subcontractor) at the request of Bales and Kite agreed to continue hauling gravel in wet weather, upon the agreement of Bales and Kite that Cooper (their employee) would pull the trucks in the event they should become mired in soft ground. A cable would be attached to the bulldozer operated by Cooper in pulling the trucks, which were equipped with front bumper hooks, installed by Keith Williams. When a truck became stalled or stuck, Cooper would back his bulldozer near the truck and a cable would be looped over a bumper hook (or hooks) and Cooper would pull the truck with the bulldozer.

On the morning in question, February 2, while Cooper was pulling one of Keith Williams' trucks, driven by Arnold, one of the bumper hooks became loose, the cable slipped and struck Cooper on the head, seriously injuring him.

Prior to this mishap, on the afternoon of Friday, January 30, 1953, appellee, Cooper, discovered that the hooks on the truck driven by Arnold for appellant, Keith Williams, were in an unsafe and defective condition and he had told appellant, Arnold, and other drivers on the scene, including Mr. Watson, foreman for Keith Williams, in charge of the truck operations, that he would not pull the truck again until the bumper hooks were repaired. Cooper testified:

'A. I told them that hook had been damaged and not safe to be pulled on and that they must fix it before I would pull it any more.

'Q. What did they tell you? A. They said they would fix them. * * *

'Q. When you backed up on Monday in obedience to Mr. Arnold's motioning to you, did you know that the bolt had not been repaired or that the hook had not been reconditioned? A. No, sir. I wouldn't have hooked onto it. * * *

'Q. Was it possible for you to see the condition of the hook or the bolt while operating your bulldozer and while seated there and while backing up to the truck to pull it? A. No, sir.

'Q. Tell the jury why? A. It is possible other people draw your attention away and by the obstructions you have behind you on this kind of bulldozer. Normally, you have to get up and raise up to look over to get a close enough view.

'Q. Even if you got up and looked over would it be possible for you to see the condition of the bolts under that hook? A. No, sir.

'Q. Tell the jury why you couldn't make an inspection of that hook on that morning when you backed up to that particular truck to pull it out? A. I assumed by them telling me that they would repair it in our talk Friday that we had that that thing had been made sufficient for proceeding during our work. I just thought by them telling me that they would fix them that they would fix them.'

Appellant, Arnold, tended to corroborate Cooper's testimony:

'Q. Were you there when Mr. Cooper talked to you about the hook or the condition of it that was on the front of your truck? A. Yes, sir.

'Q. What did he tell you? A. He said, 'You know it's been bent over and it needs to be fixed.'

'Q. Was it leaning over? A. Yes, to a certain extent it was.

'Q. Did you promise to fix it? A. We told him we would see about getting it fixed.

'Q. Did you have it fixed? A. No, sir, I did not.'

There was other testimony of a corroborative nature.

After a careful review of all the testimony, we are unable to say that there was no substantial evidence to support a verdict for Cooper, based on a finding of negligence of appellants and want of contributory negligence on the part of Cooper. As we said in Mutual Life Insurance Company of New York v. Springer, 193 Ark. 990, 104 S.W.2d 195, 197: 'There might be very great doubt, and yet, if there is any substantial evidence at all, it is sufficient to support a verdict.'

Whether Cooper exercised the ordinary or reasonable care required of him, in the circumstances, in view of appellants' promise to repair the hooks, which admittedly appellants failed to do, was a question for the jury.

Appellants insist that the facts in the present case bring it squarely within the rules announced in Sallee v. Shoptaw, 210 Ark. 600, 198 S.W.2d 842 and Leo J. Ambort & Sons v. Bratton, 216 Ark. 725, 227 S.W.2d 617, and they were entitled to an instructed verdict in their favor. We do not agree.

Those cases are distinguishable on the facts in each. It suffices to say that in those cases, there was absent the issue of a promise to repair, which is present here.

A great many instructions were given, seven on behalf of appellees and twelve for appellants. It appears that every phase of the case was fully covered in those instructions.

--(2) and (3)--

As indicated, appellants complain as to only two of appellee's instructions,--No. 1 and No. 6. No. 1 was objected to generally as being a binding instruction and inherently wrong, and specifically as being argumentative, confusing to the jury, a comment on the facts and weight of the evidence and that it tended to lead the jury to believe that the court was detailing appellee's contentions which it throught were shown by the preponderance of the evidence. We do not so interpret its overall effect. While the instruction is unnecessarily long, and not to be commended...