Opinion
37167.
DECIDED JULY 16, 1958. REHEARING DENIED JULY 29, 1958.
Action for damages. Polk City Court. Before Judge Flournoy. March 8, 1958.
Smith, Field, Doremus Ringel, Palmer H. Ansley, for plaintiff in error.
Marson G. Dunaway, Jr., contra.
1. The court did not err in denying the motion for a judgment notwithstanding the verdict.
2. The court did not err in denying the motion for a new trial.
DECIDED JULY 16, 1958 — REHEARING DENIED JULY 29, 1958.
Mrs. Gertrude Hulsey sued Charley Bramlett in the City Court of Polk County to recover damages for personal injuries alleged to be due by reason of the negligent operation of the defendant's truck. The petition alleged: that on the 19th day of November, 1956, the defendant had parked his vehicle, a pickup truck, at the side of Springdale Road on the R. C. Moore farm, with the rear wheels of the truck extending into a ditch or gully off the traveled portion of the roadway; that at about four o'clock, p. m., on said date, the defendant requested the plaintiff, Gertrude Hulsey, to stand on the right running board of said truck while the defendant carefully eased the truck onto the road, so that the truck when put into motion by the defendant would not topple over on its left side, which was overbalanced because the left wheels were in a ditch or gully; acting pursuant to the defendant's said request, the plaintiff Gertrude Hulsey stood on the right running board of the truck as the defendant prepared to drive it onto the roadway; that as he brought the truck into motion, the defendant caused the truck to move forward with a sudden and swift jerk, so that the plaintiff Gertrude Hulsey's grip on the truck was shaken loose, and said plaintiff was thrown from the said running board and onto the ground beside the truck; that the defendant gave the plaintiff no warning that he was about to start the truck forward with a sudden, swift, motion, and the defendant knew, or should have known in the exercise of ordinary care, that the plaintiff was expecting a slow, easy motion of the truck onto the roadway; that the defendant Charley Bramlett was guilty of gross negligence, in the operation, control and management of his truck at the time and place aforesaid in the following particulars: (a) In that he violated the provisions of Code (Ann.) § 68-1646, in that he drove said truck from a stopped, standing and parked position before said movement could be made with reasonable safety, which constitutes negligence per se; (b) In that he violated the provisions of Code (Ann.) § 68-1626, in that he drove the automobile on a public road at a speed greater than was reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, which constitutes negligence per se; (c) In that he violated the dictates of due care in that he failed to warn the plaintiff, Gertrude Hulsey, that he was going to start the truck with a sudden and swift jerk; (d) In that he violated the dictates of due care in that he drove the truck from a standing position swiftly and suddenly as hereinbefore set out; (e) In that he drove his truck forward so as to throw the plaintiff to the ground and cause her hip to be broken by the fall.
To the plaintiff's petition, the defendant Charley Bramlett duly filed his answer admitting that he was subject to the jurisdiction of the court, denying the material allegations of the petition and pleading affirmative defenses that on the day the plaintiff was injured she had been employed by the defendant to pick cotton for him at a field approximately four (4) miles from her home; that as a part of the contract of employment, the defendant was to furnish transportation to and from the field, that the defendant had taken the plaintiff to the field in his pickup truck; after the cotton had been picked and weighed, the defendant backed his truck into a ditch to more easily load same and after the truck was loaded, same was titled with the left side lower than the right side. While the truck was so titled, the defendant requested the plaintiff to stand on the right running board while he drove the truck out of the ditch. The defendant denied that he was negligent but averred further, that even if he was negligent, plaintiff was not entitled to recover for that she was an employee at the time of the occurrence and she had assumed the risk of injury to herself and that her contributory negligence barred her from recovery.
The jury returned a verdict for the plaintiff and the defendant excepts to the denial of his motion for a new trial and of his motion for a judgment notwithstanding the verdict.
1. There is no merit in the exception to the denial of the motion for a new trial on the general grounds nor in the exception to the denial of the motion for a judgment notwithstanding the verdict. The defendant contends as to these matters that the plaintiff was not entitled to recover because she was an employee at the time of the occurrence and that she had assumed the risk of injury to herself and was barred by her contributory negligence. The evidence does not show that the plaintiff was an employee of the defendant in standing upon the running board of the truck. She was not required to do it under the contract of employment to pick cotton even if transportation to and from the cotton field was included in the contract of employment. The plaintiff was not required under the terms of her employment to accede to the request of the defendant to stand upon the running board of the truck. The most that can be said about it is that the plaintiff acted at the defendant's request and, under the circumstances, was doing an act beneficial both to herself and to the defendant. It is true that the plaintiff stated that she knew that a "lunge" was necessary in order to get the truck out of the ditch, but we do not think that such knowledge would bar the plaintiff inasmuch as no warning was given to her as to the time when such "lunge" would take place. The plaintiff may have been guilty of some negligence even in complying with the request of the defendant, but this court cannot say as a matter of law that the plaintiff was more negligent than the defendant or that her negligence was so great as to bar her recovery.
2. There is no merit in special ground 4 of the amended motion for new trial which assigns error on the denial of defendant's motion for mistrial based on the ground that the plaintiff's attorney elicited the fact that the defendant carried insurance. On oral argument of this case it was conceded by counsel for both sides that the jury was qualified with reference to insurance and in view of this fact and of the fact that the court instructed the jury to disregard the matter complained of, we do not see how the additional reference to insurance could have been harmful.
3. There is no merit in special ground 5 of the amended motion for new trial which assigns error on the court's charge in which he instructed the jury relative to the violation of a State statute and by defining negligence per se. The only point the plaintiff in error seeks to make is that the evidence did not authorize the charges with reference to the violations of the statutes set forth in the petition for the reason that there was no evidence that the truck at the time of the alleged injuries was in the public road. The direct and circumstantial evidence authorized the finding that the truck was being operated in the public road at the time the plaintiff contends she was injured.
4. Special ground 6 of the amended motion for new trial is without merit for the same reason stated in the foregoing division. In addition there is no merit in the ground based on the contention that there was no evidence to show at what rate of speed the defendant's vehicle was being driven at the time of the injury.
5. Special ground 7 of the amended motion for new trial complains of the following charge to the jury: "I charge you, gentlemen, that no person shall start a vehicle which is stopped, standing, or parked, unless and until such movement can be made with reasonable safety." The complaint is that there was no evidence that the alleged "lunge" of the truck which allegedly caused the injury was made at a time when the truck was stopped, standing or parked, and authorized the jury to make a finding of fact not authorized by the evidence.
With reference to when the truck lunged, the plaintiff testified in part: "Q. After you stood on the running board, would you describe for us what Mr. Bramlett did then? A. He just went around and got in the truck, and he just mashed on his gas, just made a kind of lunge, and we started to go up into the road. Q. What happened to you as he started the truck into motion? A. It just jerked my grip loose, I couldn't hold, and I fell off. Q. Did Bramlett give you any warning that he was going to lunge the truck forward as you have stated? A. No, sir. Q. Did the truck begin its motion slowly, or did it suddenly move away from its position? A. He just kind of started off slow when he first started. Q. How did the motion continue after that? A. Then he just made a lunge there. Q. Did the motion of the truck change after he started easing it off? A. You see, he made that quick lunge and he went on up into the road." The jury could have interpreted this testimony to mean that the truck moved slowly at first and then lunged and jerked the plaintiff's grip loose from the truck and that as a result she fell; that this movement of the truck was all a part of starting. Starting a vehicle is not confined to one or two turns of the wheels. There was sufficient evidence to warrant the charge excepted to.
The court did not err in denying the motion for new trial as amended and did not err in denying the motion for judgment notwithstanding the verdict.
Judgment affirmed. Quillian and Nichols, JJ., concur.