Hobbs Western Tie Co. v. Orahood

Sam Robinson, Associate Justice. This is a personal injury case. Plaintiff, Othel Orahood, appellee, obtained a judgment in the sum of $4,500 as damages for personal injuries sustained when she was struck by a crosstie which fell on her from a truck that was being unloaded. Appellants contend there was no substantial evidence to sustain the verdict, and that an admission said to have been made by one of the defendants to the plaintiff was inadmissible in evidence. The defendant Hobbs Western Tie Company is in the railroad crosstie business and has places of business in several localities, one of which is at Mammoth Spring. The Mammoth Spring operation was in charge of Lester Quarles, an employee of Hobbs Western. About 4:00 p. m. on June 16, 1956, Herschel Abney brought a truck load of ties to Hobbs Western’s place at Mammoth Spring for the purpose of selling them. Mr. Quarles agreed to buy the ties, and instructed Abney where to place his truck for the purpose of unloading them. The spot where Quarles instructed Abney to place his truck for unloading purposes was partly on the public road and partly on the private property of Hobbs Western. Appellee, Mrs. Orahood, worked for a chicken processing plant and was on her way home, walking on the side of the public road opposite the side where the truck was parked. Just as she was passing the truck, one of the crossties from the truck struck her about the legs, causing serious injury. Appellants contend that the agent of Hobbs Western, Quarles, who was present, had no control over unloading the truck — that he was merely inspecting the ties; but it is admitted that Quarles, as agent for Hobbs Western, instructed Abney to place the truck partly on the public road to unload it. Negligence is the doing of that which an ordinarily prudent person would not do under the circumstances, or the failure to do that which an ordinarily prudent person would do under the circumstances. It was a question for the jury to determine whether it was negligence for Quarles to have the truck placed partly on the public road to be unloaded. It is a matter of common knowledge that railroad crossties are very heavy timbers. Whether Quarles should have anticipated that the very thing that did happen might happen was a question for the jury. There is no showing as to what caused the tie to be propelled from the truck and strike Mrs. Orahood, except the testimony of Jim Romine, who was assisting in unloading the tics, and he testified: “Q. After the truck was stopped where Mr. Quarles directed you, who actually unloaded the ties? A. I did. Q. Did you push the ties off the truck on to the ground? A. Yes.” To sustain their position, appellants cite Leonard v. Standard Lbr. Co., 196 Ark. 800, 120 S. W. 2d 5. There it was held that the owner of a mill was not liable for injuries received by a person when struck by lumber from a truck when the lumber was being unloaded on the mill property and the mill owner had no control over the person unloading the lumber. There is quite a distinction between that case and the case at bar. In the Leonard case the lumber was being unloaded on the private property of the mill owner. There was no question of the public road being used as a place to unload the lumber. Appellants also cite Willoughby v. Hot Springs Ice Co., 180 Ark. 231, 21 S. W. 2d 168. This case is hardly in point. One customer of an ice company negligently and carelessly ran into and killed another customer of the ice company on the ice company’s property. A public street or road was not involved. This Court quoted with approval from the case of Manning v. Sherman, 110 Me. 332, 86 A. 245, 46 L.R.A.N.S. 126, as follows: “. . . The fact that the negligent act which caused the injury was done on a person’s land or property will not render him liable, where he had no control over the persons committing such act, and the act was not committed on his account . . .” In the case at bar appellants were responsible for the heavy crossties being unloaded from the truck while it was parked partly on the public road. The agent for the appellant Hobbs Western instructed the driver of the truck to stop the truck at that place to unload it, and he knew pedestrians customarily walked along that road. It was a question for the jury to say whether this action of the agent, Quarles, constituted negligence. In the case of Blakely & Son v. Jones, 186 Ark. 1169, 57 S. W. 2d 1032, we said: “In determining what is or is not negligence in any given case, the test is always what in the light of all the circumstances and in situations similar to that of the person under inquiry, one of ordinary prudence would or would not do, and where men of ordinary intelligence might differ in their honest judgment, the question of negligence is one for the jury.” And in 65 C. J. S. 592, it is said: “A person responsible for a place, agency, instrumentality, or operation which is dangerous and likely to cause injury or damage to persons or property rightfully in its proximity is charged with the duty of taking due and suitable precautions to avoid injury or damage to such persons or property. ... A person responsible for a dangerous place or instrumentality must guard, cover, or protect it for the safety of persons or animals rightfully at or near it, and his failure to do so is negligence. . . .” When human life is at stake, the rule of due care and diligence requires that, without regard to difficulties or expense, every precaution must be taken reasonably to assure the safety of any persons lawfully coming into immediate proximity of a dangerous agency or device. Been v. Lummus Co., 173 P. 2d 34, 76 Cal. App. 2d 288. Mrs. Orahood testified that subsequent to the time she received the injuries Mr. Quarles, one of the defendants in the case, told her “We are to blame and I hope you get a reasonable settlement.” This testimony was given over the general objection of the defendants, bnt the court was not asked to instruct the jury that the statement should be considered only as against Quarles, who had made the statement. This was an admission on the part of Quarles and was clearly admissible against him. No doubt if the request had been made the trial court would have told the jury not to consider the statement as against Hobbs Western. “The admissions of a party made directly by him, . . . relative to the subject matter of a suit are received as original evidence against such party, where inconsistent with the claim which he asserts in the action, whether he is the plaintiff or the defendant.” 20 Am. Jur. 460. Affirmed. Harris, C. J., and George Rose Smith, J., dissent.