Bess v. Herrin

Donald L. Corbin, Justice. Appellant, John “Bo” Bess, appeals a judgment of the Conway Circuit Court entered in a wrongful death case pursuant to a jury verdict in favor of appellee, Dottie Herrin, as administratrix of the estate of Steven Maurice Herrin, Sr., and as next friend of Steve Herrin, Jr., and Randall Scott Herrin. Appellant asserts seven points of error, one of which is the trial court’s failure to grant a directed verdict on the issue of negligence. We agree that the trial court erred in not directing a verdict for appellant on the issue of negligence. Therefore, we reverse and dismiss. Appellant is the owner of a tractor-trailer truck he uses to haul timber. On December 19, 1986, he was not able to make his usual run to haul a load of logs. Wayne Herrin, appellant’s brother-in-law who was living with appellant at the time, drove appellant’s truck to haul the logs from Mulberry, Arkansas, to Morrilton, Arkansas. Appellant’s other brother-in-law, Steve Herrin, made the trip with his brother Wayne. Steve Herrin was run over and killed by appellant’s truck when Wayne Herrin stopped the truck to check its brakes before descending a steep hill with the full load of logs. While arguing that the trial court should have directed a verdict on the issue of negligence, appellant recognizes appellee has two theories of appellant’s liability. One, appellant supplied Wayne Herrin with a truck in an unsafe condition. Two, Wayne Herrin acted within the scope of his authority as appellant’s agent and negligently caused the decedent’s death by improperly applying the brakes. On appeal, appellant claims there is insufficient evidence of these two theories of liability to submit the issue of negligence to the jury. He argues there is simply no evidence of negligence and it is improper to submit the issue to the jury with evidence only that an accident occurred. The following evidence of negligence was presented at trial. Appellant, as the owner of the truck, testified that he had previously had a problem with the brakes on the truck; that he adjusted the brakes every day; that he had driven the truck on the day prior to the accident and nothing was wrong with the truck; and that he did not adjust the brakes on the day of the accident. Wayne Herrin, as the driver of the truck on the day in question, testified that the brakes worked properly on the trip to Mulberry, Arkansas, where he picked up the load of timber; that on the return trip to Morrilton, Arkansas, because the brakes felt funny, spongy, and like they were not catching properly, he stopped to check the brakes before descending a steep hill; that he set the truck’s brakes; that he and the decedent exited the truck to check the brakes; and that the truck began to roll very slowly. Both appellant and Wayne Herrin stated that if the brakes were set on the truck, then the truck should not have moved. Wayne Herrin stated that when the truck began to roll, he entered the truck, found that the brakes were still set, hit the foot brake, reset everything, and the truck stopped rolling. Wayne Herrin testified that it was at this point that he realized his brother Steve was hurt. Wayne Herrin stated he thought his brother was instantly killed; from what he could see his brother’s hair must have been caught under the wheel and there was nothing left of him from the chest up. Appellant testified that he drove the truck after the accident and never had any trouble with the brakes. When reviewing the denial of a motion for directed verdict, we give the proof its strongest probative force, examine it most favorably to appellee, and affirm the trial court’s denial if there is any substantial evidence to support the verdict. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987). Viewing the foregoing evidence in such light, we are unable to find any substantial evidence to support the jury’s verdict of appellant’s negligence. There is evidence that an accident occurred. However, as appellant correctly points out, negligence cannot be presumed from the mere happening of an accident. Missouri Pacific R.R. v. Baum, 196 Ark. 237, 117 S.W.2d 31 (1938). Except in cases where the doctrine of res ipsa loquitur applies, negligence must be proven. Id. Here, there was proof that the truck rolled over the decedent; there was proof that the driver set the brakes; and there was proof that the truck had previous brake problems. There was even testimony that if the brakes were set, the truck would not have rolled unless something was wrong with the truck. However, there was simply no evidence to support either of appellee’s theories of negligence;,there was no evidence that Wayne Herrin negligently applied the brakes, nor was there evidence that something was wrong with the truck, i.e., that appellant supplied the truck to the Herrins in a unsafe condition. In view of the lack of evidence as to what caused the truck to roll, either the driver’s imputed negligent application of the brakes or the unsafe condition of the truck, we conclude there is no substantial evidence to support the jury’s verdict. It was error to submit this case to the jury and to deny appellant’s motion for directed verdict. The judgment is reversed and the cause dismissed. Hays and Brown, JJ., dissent.