Aetna Casualty & Surety Co. v. Owens

Per Curiam. Thomas Moore, an equipment superintendent for a road building company, died as a result of being pinned against a roller by a truck that was backing in order to dump a batch of sand, gravel and cement into a mixer that was pouring concrete to form a road. The appeals are from judgments for costs that followed verdicts of a jury for Owens, the owner of the truck, and Kyle, its driver, in actions against them by the compensation insurance carrier of Moore’s employer, and Mrs. Moore. The trial court submitted to the jury the questions of Kyle’s negligence (on instructions we think were adequate, although the appellants argue that they were not sufficiently detailed and particularized), and that of Moore’s contributory negligence.

The appellants’ real contention is that there was no evidence to justify submission of the latter issue to the jury. In our view it is clear that reasonable minds could have found from the testimony in the record that Moore was not properly heedful of his own safety. The truck involved was one of some fifteen that continuously fed the mixer which was pouring the concrete to form the road. It took thirty to forty-five seconds to dump a batch into the mixer and, after unloading, each truck drove off for a new load.

Several trucks were always waiting in line and, as one moved, the next would back up into the position vacated. Kyle was waiting in line for his turn some five feet ahead of a stalled roller which was about one hundred feet ⁴⁵² ahead of the mixer. Moore was awaiting a mechanic he had sent for an ether pill to start the roller so as to get it out of the way of the advancing mixer and the backing