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May 28, 1953


The opinion of the court was delivered by: John E. Miller, District Judge.

On March 27, 1953, plaintiff filed his complaint against the defendants in the Madison Circuit Court. Plaintiff alleged that he received personal injuries which were proximately caused by the negligence of Clarence Earl Barlow, a servant, agent and employee of the defendants; that the said Barlow, while acting within the scope of his employment, negligently and carelessly operated a truck belonging to defendant, causing said truck to collide with plaintiff's truck; that plaintiff was injured without fault on his part; and that he should recover of and from the defendants damages for the personal injuries he sustained.

The cause was removed to this Court, and on April 20, 1953, the defendants filed their answer in which they denied that they were guilty of negligence and affirmatively alleged that plaintiff was guilty of contributory negligence. The defendants further alleged that the accident was caused by the negligence of the operator of a third motor vehicle.

On May 25, 1953, the case was tried to the Court without a jury. At the conclusion of the trial the defendant, Tulsa Rendering Company, moved for judgment in its favor; plaintiff conceded that the said defendant was entitled to judgment and the Court entered an order dismissing the complaint of the plaintiff as against the Tulsa Rendering Company, and that defendant will not be mentioned further by the Court. The defendant, Collinsville Rendering Company, likewise moved for judgment in its favor, but the Court denied this motion.

At the conclusion of the trial the case was submitted to the Court, and now, after considering the pleadings, ore tenus testimony of the witnesses and exhibits thereto, the Court files herein the following findings of fact and conclusions of law, separately stated.

Findings of Fact

No. 1

The plaintiff, Dave Kisor, is a citizen of the State of Arkansas and resides in Madison County, Arkansas. The defendant, Collinsville Rendering Company, is a corporation organized under and pursuant to the laws of the State of Oklahoma. The amount in controversy, exclusive of interest and costs, exceeds the sum of $3,000.

No. 2

On January 31, 1953, Clarence Earl Barlow, age 50, was an employee of the defendant, Collinsville Rendering Company. He had been working for the defendant for approximately one year as a truck driver, but he had a total of three years experience as a truck driver. He worked during the day until about five days before January 31, 1953, when he was assigned to the night shift. On the night shift he was required to go from Collinsville, Oklahoma, to Fayetteville, Arkansas, where he would obtain a load of chicken entrails and haul them to the rendering plant of defendant at Collinsville, Oklahoma. On January 30, the day immediately preceding the date of the accident, Barlow retired at 7:30 a.m. and arose at 1:00 p.m. At 6:00 p.m. he left Collinsville on his regular trip to Fayetteville, Arkansas, but he was involved in an automobile accident at Claremore, Oklahoma, to such an extent that the truck that he was driving was disabled and he was forced to have the truck towed back to Collinsville and there he waited until about midnight to obtain another truck with which to make the trip. He obtained the truck, a 1952 International Two-Ton Truck, which was being driven by another employee. After obtaining the International truck, he drove to Fayetteville, Arkansas, and arrived there about 3:45 a.m., January 31, 1953. There he proceeded, without help, to load upon the truck 31 barrels of chicken entrails, each barrel weighing 350 to 400 pounds. He also shoveled 27 barrels of loose entrails in between the 31 barrels on the truck and covered the load with a tarpaulin. The load weighed 17,650 pounds, and defendant admitted in its brief that the truck was overloaded. Barlow left Fayetteville about 6:15 a.m. and drove on U.S. Highway 71 to Springdale, Arkansas, and after eating breakfast at Springdale, he resumed his trip to Collinsville traveling west on U.S. Highway 68, and had proceeded on said highway in a westerly direction about three miles at the time of the accident.

Barlow was acting within the scope of his employment and was in the discharge of his duties as an employee at the time of the collision.

So far as the record shows, Barlow had had no experience in the driving of the International truck and he testified that he had not tested the brakes nor used them other than the usual and ordinary use in making the trip from Collinsville to Fayetteville and from thence to the point of the collision.

The truck was equipped with a tachometer which recorded the time the truck was moving and its rate of speed. This tachometer disclosed that the collision occurred about 8:15 and that the truck was moving at the rate of from 38 to 40 miles per hour at the time.

No. 3

The plaintiff is 48 years of age and is now and has been, since boyhood, engaged in the canning, livestock and farming business in Madison County, Arkansas. He left his home in Madison County about 4:30 a.m. on the morning of January 31, 1953, driving a 1952 Ford truck owned by his son-in-law. The truck was loaded with walnut logs and was driven by plaintiff to Gentry, Arkansas, where he arrived about 7:00 a.m. After the logs were scaled and he had received the purchase price therefor, he left Gentry to return to his home. He traveled highway 59 south from Gentry to Siloam Springs, Arkansas, and there took U.S. Highway 68 and was traveling east on that highway when the collision occurred.

Immediately prior to the collision the plaintiff was driving in the south lane of the highway, which was his right side, at a rate of speed 25 to 30 miles per hour.

A Mercury automobile driven by James McCann, a student of the University of Tulsa, had been following the truck of plaintiff for a distance of from one-half to one mile immediately prior to the collision between plaintiff's truck and the truck of the defendant.

There was a fog along and upon the highway of varying density. At various places on the highway the fog was very thin while at others it was more dense. Apparently the fog increased in density in valleys and depressions, but at no place or time was the fog of sufficient density to prevent safe driving by the exercise of ordinary care on the part of the driver.

The Mercury automobile belonged to the father of Glen Wynn, Jr., and was occupied by the driver, James McCann, Glen Wynn, Jr., and two other students. They were on their way to Fayetteville, Arkansas, for a visit to a fraternity house.

The highway was straight and the collision occurred near a slight depression. A vehicle approaching the scene of the accident from the East would be traveling down a slight incline, but the testimony does not show that the incline was such as would necessarily increase the speed of such vehicle. The driver of the Mercury desired to pass the plaintiff's truck and he turned his car to the left preparatory to passing when he saw defendant's truck approaching from the east at a distance of from 100 to 150 yards. The driver of the Mercury immediately removed his foot from the accelerator and was preparing to drop back behind the plaintiff's truck or to drive off of the highway to his left in order that the truck of the defendant might pass along and upon the north lane of the highway or its right side. However, the driver of the Mercury noticed that the defendant's truck at that time was about half way over the center line and was gradually turning into the south lane, which was the traffic lane occupied by the plaintiff. When the driver of the Mercury observed the situation and actions of the defendant's driver he continued to occupy the north traffic lane and passed the two trucks as they collided.

The truck of the plaintiff, the Mercury automobile and the truck of the defendant all had their headlights dimmed and there was no perceptible glare from the lights. Mr. McCann and Mr. Wynn both testified that the fog was light and that the entire highway right of way, fences, ditches, trees and other things were clearly visible to anyone. The first person that appeared on the scene was Mr. W.R. Gibson, a driver for the Continental Bus System. He arrived at the scene at 8:25 and immediately after the collision. The collision occurred at or very near the south line of the pavement. The truck of plaintiff was struck on the left side immediately behind or near the cab. The right hand wheels of the plaintiff's truck were on the south shoulder and the left front wheel of the defendant's truck was likewise on the south shoulder.

The impact of the collision was sufficient to turn defendant's truck onto its right side and thus spilled the contents of its load on the plaintiff's truck and covered the plaintiff and his truck with chicken entrails, and in fact strew the entrails down the road to the west for a distance of 20 to 25 feet. The plaintiff's truck caught fire and he received a slight burn on his face before being extricated therefrom. Mr. Gibson was giving most of his attention to the use of a fire extinguisher as about that time Ed Curtis and he, with the help of the occupants of the Mercury automobile, succeeded in extricating the plaintiff from his truck.

No. 4

Someone notified the Chief of Police at Springdale of the collision and he in turn called and obtained the services of W.C. Struebing State Patrolman. They arrived at the scene at 8:45. At that time the plaintiff had been removed from his truck and was lying on the south shoulder of the highway in an unconscious or semi-conscious condition.

The uncontradicted testimony showed that the pavement at the scene of the accident was 19 feet wide. On the north side of the highway there is a 7 foot 2 inch shoulder, then a gradual two foot slant leveling off into an 18 foot wide area. On the south side of the highway there is an 8 foot shoulder, but, the ditch on that side is more pronounced than the one on the north side.

The State Patrolman and Mr. Wayne Hyden, Chief of Police, testified that in traveling from Springdale to the scene of the accident the parking lights on their automobile were burning but that these lights were not necessary except as a matter of precaution.

The State Patrolman and Mr. Hyden made certain observations and their testimony is undisputed that the defendant's truck began a gradual and sweeping turn to its left and onto plaintiff's side of the highway at a distance of 108 feet east of the point of impact. The right tires on the defendant's truck made a more pronounced impression on the pavement than the tires on the left hand wheels. The driver of defendant's truck testified that he did not know if he applied the brakes, but the testimony of the State Patrolman and the Chief of Police indicates that the brakes of defendant's truck may have been applied, although more weight would have been thrown on the right hand wheels of defendant's truck while it was making the sweeping turn to the left and that may account for the deeper impression made by the right hand wheels on the pavement.

The driver of defendant's truck testified that he saw the headlights of the Mercury automobile when it came from the back of the plaintiff's truck and that he became so frightened he did not know what to do. He had, prior to the date of the accident, made five trips to Fayetteville, Arkansas, from ...

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