ARRA TEMPLE' COTON:: OIL'CO: v. BROV. 877 TEMPLE C0ON : Oiii ,COMPAN1'../V. : •: „ ; 4-4138 Opinion; delivered :Rine :22,• 1936: 1.• -NEthA6ENcE,.. I.L.6oNcuiurid . , : Acts.—Where tWo cOncth . ring 'has' 'of negligence are the'proxirnate: cause of!an injury i th'e party respon-; :sible for one of these concurring ,iiCts is . liable therefor,: unlesS the l injury, would have occurred without his 'concurring act of , neglil . gence. MASTER AND SERVANT—W , here children Were oPeraiing cotton nil' ennipanY's truek 'a. runway' an whiéh no guard rails had : been placed to preVent truck from falling from : runway;"and ari employee woiking belOw is injured' by the falling truck,' the corn, ,,pany, is,liable for. such injury. , , , , : . ApPear froni Clark Circmt . 63;iit; Dexter' Puh, judge ; modified. ,.. „ Nig4t . 0 rawf gra ; Sham, ,,.$halier Owens .& Otimari, and E. L. Ilicriafiey, 4r., for appellant. .J. H. Lookadoo , and Sam . T . 4 . 11 9m, Po s e, for: appellee: . HUMPHREYS', This. is: :a. Suit brought : by :apPellee against appellant in the -circuit court Of 'Clark cOunty to recover daritages for-personal :injuries 1 . eCeived-by ! him in ! the performanceybf : his • ditties :as: an employee of: appellant, • through ! the. .alleged negli o 'ence -Of appellant :in :failing to: furnish him • reasOnablY safe • illae& !to..work: The -.particular acts :of .negligence alleged consisteddri a failure! to/provide. a :toe; Ward, rail -br • guard•bf. Some kind to. prevent :a. hand: truck,: being used to • off-bear cotton seed . hulls, :from :falling- -Off a :runway . abOut three . feet wide, . used: to conveY cotton! seed . hulls :to .• a , pOint where. they .were • dropped to 'the-floor • below . to.• be . stacked ;, and in allowin o. the truck-to be used Or:operated. by two: boys; the sons of- :Newt • Hudgens,' who: .was - in the emplOy: of appellant: . •
878 TEMPLE COTTON OIL CO., V. BROWN. [192 Appellant filed an answer denying. the allegations of negligence and interposing the defenses of assumed risk, contributory negligence, and an efficient intervening cause that resulted in the injury.,: The cause was submitted to the jury on the evidence adduced, and instructions of the court, which resulted in a verdict and consequent judgment in favor of appellee for $1 . 5,000, from which is this appeal.,, . The undisputed facts , reflected by the record are as follows : At the tithe of' receiving his' injuries, 'appellee was employed by appellant at,its cotton oil plant in Ashdown. He was ,working as .a day laborer at $1.25 per day in the hull room; which was 125 feet long and 80 feet wide. The roof. was '50 feet 'above 'the floor. Cotion 'Seed hulls were conveyed into this room from another part of the Mill to be sacked and stored. ,Thei:e Was a * platform 20 feet, square and seventeen feet high in this room, where two hull packing machines were : installed. A runway about three feet wide extended from'this platform almost the length of ,the hull .room, which has a fall of 21 inches the 'first twent -Sione feet; and is then level; to the end thereof,, at which point a stairway extends to the, conCrete floor Of 'the' Inn ' , fon. * When 'the 'plant was in operatiOn; lifills . ivonld' be 6onVeyed lo the platfohn and there 'sacked. aria 'placed On a . twowheeled hand truck weighing 120 pounds, which was:Pushed along the runway by the' off-bearer to: 'such point as desired to unload the sacks arid drop thentto the :concrete floor, which is about sixteen: or seventeen; feet 'below: the runway, for the pui-pose Of stacking and storing -them. On: Septem-ber 27, 1933; a . bout seven o'clock p...th aptiellee, who 'was off-bearer on one of the-shifts; went-down to the lower floor to stack' the , sacks: of hulls he had. conveyed 'along the runway On the truck arid dropped dOwn on the floor during the afternoon, and while: ; engaged in stacking them, , the'truck, being . pushed by . two hoys on the runway, ran off and fell for a distance of: 'about . seyenteen feet on appellee.. He did not: know= the , ,boys. were uP on the runway::or platform or .that they . AT ere Operating the truck. The truck fell on appellee's head, fracturing his
ARK.] TEMPLE COTTON , :OIL CO: v. BROW14. 879 skull, and . .injuring: his brain:, : The bone . .on the• right side of his head, three inchesdn length arid an inch wide, was removed..„The. brain, bulges .out , of this hole 'against the membrane and . skin, or. sealp. . brain. also;bulges out, of the hole ; in., the skull, at the site of .the injury against the membrane and skin.. , •The pulsations of..his heart are. visible .0:this .place, In,. addition . to the pain and suffering endured .b . y.,him at, the time of the. injury, and during the period;, of . xecov,ery, he ,..suffrs.- from dizziness and nausea attimes,; and the yision , of:his right, eye is impaired. .Appellee was 31years. of age, and lad an expectancy of ,36..Tears . nt the time . he• received his injuries. ' He was :strong,and ,healthy and was earning $1.25 a day. ;.. ,„ . . The record-reflects a . sharp conflict in the testirnony as. to whether there wa8 a:tee:board. or rail' on the .Side of the runway to prevent the truck frOin'falling oft when. being. operated; and whether appellee assumed the, risk. ' It is 'apparent , froni. the facts detailed aboVe 'that :the injuries, were . :the .. result : of, thet concurrent : acts of 'Appel-failing 'to • maintainva .-toa . board - or. rail on 'the-runikay,.) anct, of the boYs 'pushing , :the . truck down the runway. If the boys had not. pushed the truck down the runway; it.•would. not have,..f allen . and struck appellee, and, although. they .did7 this, .the truck would,not have fallen' off .had 'toe boards, -or ,rails been on •the . side ,of the runway to , support: and .prevent it from, falling . on him. The:two 7 concurring acts were, therefore; the proxi7 mate cause of the injury. The party yesponsible for, either Of the concurring„acts - of negligence is, liable unless the accident would ,have happened ,without curring .act, of, negligence, This.,is the rule announ.ced by 'this court in . .the ease of . Phil,lips Petrolemn.,0o., Berry; 188 . Ark.. 431, ,65 20 )i ".Syllabus. six of. this opinion reads ! as, `.W.here .several, :causes combine.,to produce . an injury;:one is , net, relieyeci .from liability because he is responsible for only one: of the.se causes, ,if,--without , his ,negligent ,aot, tjie. injury would' not have occurred." • The instant case is ruled by the case referred to. In view of the rule announced in the case cited, instruc-
880 TEMPLE COTTON 'OIL CO. V. BROWN: [192 tion 1 requested by appellee and given by the &girt is' correct. Said, instruCtiOn••is as follOWs: • "If you find ' froin a preponderance• of: the' 'evidenee that' 'Plaintiff; 'Willie 'Brown; While working- for defendant,' TerriPle ' Cotton ■ jr . il CoMpany; and 'stacking sacks of cotton seed 'hulls in the-'hUll :roan • of'defendant'S Ash-down 'Mill,' was injured by . a; truck 'falling' oh. hini, Without faUlt bh his oWn part,' and while'exerdising Ordinary eate f or his own 'safety ; 'and 'if you . 'also find frOth a' preponderance. Of the evidence' that 'defendant, : ' TeMple Cotton OiI'Coinpany, negligently -failed: to' haVe a 'beard, 'or rail En. 'other 'gnard,' along the side not' the 'AoOr of the rtinway from"' which . the -truek fell,' and that' such negligence:of defendant, if any, was the proximate cause of the injnry of plaintiff, :i a f ny; then you are instructed•to find fdr the plaintiff unless yoti shoUld further find that •plaintiff assumed . the • ; . • ..; ; , ; , • I 7 The iSsueS : of. whether- appellant 'negligently 'failed to` .mairitain .a toe:board railing.'on. the• side: of the rimwayand whether -appellee assuined the ri.sk were snb-. milted, td thel jury tirider proper instructions; iand:appel-: lant is' bound . by the adverse:finding of the: jiiry on:those issues...:•• . • • ••• 1 : Under 'this vieW .of ; the : Case; if iginainathrial whether Newt . 11udkens.; the; father , of"tlie boys, 1VAS' a :fellew-. serVant of appellee 'or 'a . foremati 'for appellant There is nti • eirideride j the' 'cdse' , tending ! to;-ShoW appellee • was ot contribUtory 'negligence; -: SO 'that 'defense was I • * • ' • ' The'' Only' rethaining qUe stion the 'ease ' is Whether. the 'jfidgrnent 'is exCeSsive:'.. A 'thajO'ritY of :the ! Court . are' of 'Opinion that . the queStiOn WaS 'pf9iioly raised; and that Ale' Verdict is . ' s eXcessive: :The court is of • opinion that in vie* 'of appellee's Sinall ' ,earning 'eapaeitY,' and that,' ' iS" . nOt pertnanently diSabled that the • 'verdiet OibilldbereduCed to $7;540. ' The 'Writer • dOes net 'collet:it The 'judginent is therefOre reduced io as modified, is affirmed.
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.