972 STANDARD OIL CO. OF LOUISIANA V. MILNER. [191 STANDARD OIL COMPANY OF LOUISIANA V. MILNER. 4-4075
Opinion delivered December 16, 1935. 1. MASTER AND SERVANT—CONTRIBUTORY NEGLIGENCE—INSTRUCTION. —In an action for personal injuries against a corporate employee, an instruction ignoring the defense of contributory negligence of the employee held not erroneous, since contributory negligence is not a complete defense against a recovery, as partial defenses should not be stated as a bar to recovery. 2. MASTER AND SEaVANT—NEGLIGENCE OF FELLOW-SERVANT.—An instruction that, if defendant's foreman told plaintiff and another
ARK.] STANDARD On. CO. OF. LOUISIANA. V. MILNER. 9:73 • ° employee to go in defendant's truck to another place and do certain work, and : plaintiff was injured by- the, employee's negligent driving, and that plaintiff had not assumed the risk, :plaintiff could recover, held supported by evidence. 3. DAMAGES—PERMAN•NT INJURIES.—An award of $5,000 held not excessive for permanent-injuries to a man, .37 years old, which : reduced his earning capacity to almost nothing, •where plaintiff previously was a healthy, able-bodied man with a life expectancy of more than , 30 years and earning $16 per week. Appeal from Pnlaski Circuit Court; Third Division; Marvin Harris, Judge; affirmed. Moore, Gray, Burrow & Chownivg, Tor appellant. B. R. Bogard and T om W . Campbell, for appellee. •• JOHNSON; C: J. This actien 'was instituted by ap-pellee, Aubrey A. Milner, 'against appellant, Standard Oil Company of Louisiana, in the circuit court of- Pulaski County .to compensate a personal injury, alleged tO have been received by• and through the negligence Of appellant, its servants, agents and emPloyees.. The answer denied' the material allegations .of , The Complaint . and af-firnia tively pleaded contributory negligence and assumed' risk. "Upon trial- to a jury the issues were determined: in favor of appellee, and his damages were assessed' at $5,000, for which sum a judgment was duly entered, froin which this appeal comes: • It is tacitly conceded that-the testimony in behalf of appellee is sufficient . to Support- the jury's finding of liability, therefore the testimony : on , this phase of the case will not be reviewed by us. It is &intended, however, that the jury's verdict is excessive, therefore it Will be necessary to notice the testimony in this regard. Appellant's primary contention for reversal is that the circuit court erred in giving to thejury in charge aPpel-lee's requests numbered, one and three, by which the jury was told to return a verdict .in favor of appellee without conditioning Such finding upon its defense. oT contributory negligence, and . Poital Telegraph Co. -v. White; 188 Ark. 361, .66 S. W. (2d) 642,; is cited as deci-. sive of this contention:" Such' is the effect of the case. cited, but,- when properlyanalyzed, it does not necessarily have this effect. In the cited case, supra, three defenseg wereinterpoSed, -namely: release' froth liability; assumed •
974 STANDARD OIL CO. OF LOUISIANA V. MILNER. - [191 risk and contributory negligence. All three of these defenses were ignored in the finding instruction there condemned. We there held that it was error to give the finding instruction for plaintiff without conditioning such instrnction upon the three defenses there interposed. Our attention was not called to, and we did not consider or discuss the effect of the MaSter and Servant Act of 1913, which now appears as §§ 7144 to 7150, inclusive, of Crawford & Moses ' Digest, 'which has modified . the defense of contributory negligence, therefore we now feel free to consider and decide this question upon its merits. • By the sectiOns .of the statutes heretofore referred to and in all actions arising thereUnder, contributory negligence is not a complete defense thereto. We have so decided many . many times. Ward Furn. Mfg. Co. v. Pickle, 174 Ark. 463, 295 S. W. 727 ; Bradley Lbr. Co. v. Tarvin, 181 Ark. 1145, 27 S. (2d) 520 ; Miss. River Fuel Co. v. Senn, 184 Ark. 554, 43 S. W. (2d) 255 ; Dierks Lbr. & Coal Co. v. Tollerson, 186 Ark. 429, 54 S. W. (2d) 61 ; American Co. of Ark. v. Baker, 187 Ark. 492, 60 S. W. (2d) 572; W. P. Brown & Sons Lbr. Co. v. Oaties, 189 Ark. 338, 72 S. W. (2d) -213; Hartman-Clark Bros. v. Melton, 190 Ark. 1001, 82 S. W. (2d) 257. • Since contributory negligence is not a complete bar to appellee's cause of action, it necessarily follows that the court did not err in refusing to modify appellee's finding instruction to negative contributory negligence. It is only in cases where the defense or defenses interposed are complete and not partial that finding instructions must be conditioned upon such defenses, and the corollary of this proposition is that partial defenses 'only should not be stated as conditions to recovery. Temple Cotton Oil .0 ompany v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676; Coca-Cola Bottling Co. of Blytheville v. Doud, 189 Ark. 986, 76 S. W. (2d) 87 ; National Gas & Fuel Co. v.. Lyles, 174 Ark. 146, 294 S. W. 395 ; Garrison Company v. Lawson, 171 Ark. 1122, 287 S. W. 396. The views here expressed are not in conflict with those stated in Garrison Company v. Lawson, supra, and cases there cited. In all the cases there referred to we
ARk. ] STANDARD OIL CCL OF LOUISIANA V. MILNER. 975 were dealing with finding instructions which ignored defenses which were available to appellant as a complete bar to liability. We conclude therefore that no error was made to appear by this assignment. Appellant next . urges that the trial court erred hi giving to the jury in charge appellee's request number 2, as folloWs "If the jury find from a preponderance of the eVidence that the plaintiff, Aubrey A. Milner, and W. E. Scott on April 1, 1934; were employees of the defendant, Standard Oil Company of Louisiana, and that the con-a §truction foreman for said company under whom they were working ordered or directed them to leave El Dorado, Arkansas, on the evening or night of April 1, 1934, and go to Hampton,. Arkansas, so as to arrive at Hampton on the morning of April 2, 1934, to assist in doing certain work for said defendant at Hampton, and ordered or directed the . plaintiff and said Scott to make said trip in a truck belonging to the defendant, Standard Oil Company of Louisiana, and that, while plaintiff and Scott were riding in said truck from El Dorado toward Hampton, and while the said W. E. Scott was driving said truck, if you find that he did drive said truck on such trip, the said Scott failed to keep a reasonable lookout ahead and failed to keep said truck under reasonable control, and that, on account of his failure so to do, if you find from the evidence he did fail so to do, the said Scott caused or allowed said truck to leave the highway and run into a ditch and injure the plaintiff, and that, in failing to keep a reasonable lookout, and in failing to keep said truck under reasonable control, he failed to use ordinary card for the safety of the plaintiff, and that the plaintiff had not assUmed the risk of such injury, you should . find for. , the plaintiff in, this case . and assess his damages as hereinafter explained in these instructions." The contentiOn is that there is no testimony to support this instruction. A witness for appellee on this point testified: "Q.- . Tell the jury what your foreman instructed you people to do? A. Our foreman instructed us to take what material, • and Arthur . Wallace to El
976 [191 Dorado, and unload and conic back to' Hampton that night, or part of the way, so we could. be on the way early the nekt morning at eight o'clock. Q. Up on . the job at eight o 'clock the next morning at Hampton? A. Yes, sir. Q. Did he tell you whether or nOt to take the truck 'back with you to Hampton? A. Yes, .sir. Q. .What did he tell you to do at Hampton? A. We were to . dismantle a: storage tank and get it ready to.'ship to Hope, Ark-ansas. '.' • This teStimony is amply , sufficient • to support the submission of 'this -question. LaStly apPellant contends that the 'jury's verdict and consequent, judgment for $5,000 is exCessive. The testimony on this phase of the . case Warranted the jury in finding that Piior to appellee's injury he . waS 'a stout, Able-bodied young man, 3'7 years of 'age, .and iii.perfdct health, fnllY 'capable; and competent tO 'perforin all kinds ofmanual labor , ; that he had ari eXpectancy Of . more than 30 ye . ars and 'WaS .: earning . at' the,' time . of his 'injury $16 per week ; that his earning cAp .acit : On . account of his irijurY ha's been . ±edneed . .to almoSt nothing. Dr. 'McGill testified that apPellee . 'S. knee Wds perthaneritly 'injured tO the eXtent that he' cOUld never succesSfUlly 'do wOrk that required Walking -Or 'standing. This testimbny is amply sufficient to suppert . the verdict and . jUdgment. No error appearing,. the judgment is affirrned.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.