Arkansas Natural Gas Co. v. Gallagher ( 1914 )

Wood, J.,

(after stating the facts). The case was reversed on the former appeal because the court, in its instructions, ignored the contention of the appellant, which was raised in its answer, that the injury 'to the appellees “yas the result of the negligent supervision and direction” of independent' contractors, “their agents and employees.”

We did not pass upon the question on the former appeal as to whether or not the appellant was entitled to an instructed verdict upon the uncontradicted evidence. True, appellant requested such an instruction, and the refusal of the trial court to give it was urged as one of the grounds for a reversal of the judgment. But we did not determine on the former appeal as to whether the court erred in that particular. It is true that in the former opinion we said: “It was the peculiar province of the jury to determine from the testimony the extent to which Pitts was acting for the defendant and was carrying out its directions, and to what extent he was performing service for the benefit of the contractors and under their direction and control. ’ ’ But this language was used in discussing the issue of law as to whether Pitts, being in the general employment and pay of the appellant as an inspector could, at the time of the injury to appellees, be in the particular service of the independent contractors so as to render them alone liable for his negligent act, which was the proximate cause of the injury to appellees.

It is the rule here, where the court reverses for errors in the rulings of the trial court not to dismiss the case where this court can see that the same may not have been fully developed as to the facts, and that additional facts might be adduced on another trial that might produce a different result. See St. Louis, I. M. & S. Ry. Co. v. Davis, 93 Ark. 484. In such cases we refrain from expressing an opinion on the facts and reverse the judgment and remand the cause for a new trial. Such was the case here on the former trial. We did not intend by the language quoted, supra, to express any opinion as to the weight or effect of the evidence and the language of the opinion, in connection with the subject matter under discussion, should not be held as the law of the case on the issue as to whether or not the appellant was entitled to an instructed verdict.

In the cases of McDonough v. Williams, 86 Ark. 607, and Lewis v. Jones, 97 Ark. 147, relied on by counsel for appellees, this court on the first appeal in those cases had expressly decided the question as to whether or not the evidence was sufficient to sustain the verdict, and the evidence being the same on the second appeal, we held that what was said on that particular issue on the first appeal was the law of the case. Those eases do not apply here for the reason, already stated, that the court did not, on the first appeal, in this case, pass upon the question as to whether or not the appellant was entitled to an instructed verdict, and the language quoted and relied on by appellees was not intended to express any opinion on that subject. A case more nearly like the present one is that of Waters-Pierce Oil Co. v. Bridwell, 103 Ark. 345, on first appeal, and 107 Ark. 310, on second appeal.

When the causes, on the former appeal, were reversed and remanded for a new trial, the court again submitted the issue to the jury as to whether' or not Pitts was a servant of the defendant at the time of appellees’ injuries so as to render the appellant liable for his alleged negligent act, and after the testimony was fully developed the appellant asked the court again to instruct the jury to return a verdict in its favor, which the court refused, and this is the only ground which. appellant urges here for reversal.

Practically the same testimony, by the. same witnesses, was adduced on the last trial as at the first, except the testimony of a witness named Barger. He testified that he was present on the day of the accident, working for Booth & Plinn. Plaharty was their head boss. Witness heard Plaharty tell one of his men not to have anything to do with turning on the gas, but to let Pitts handle it himself. This testimony of Barger does not make any conflict in the evidence on the issue as to whether Pitts, at the time of his negligent act, was, as to that act, the servant of the appellant, or of the independent contractors. The uncontroverted evidence showed that only the inspector of appellant could turn the gas on and off. But the undisputed evidence also showed that when the work of repairing leaks was being done, Pitts, in turning the gas off and on, was under the direction and control of the independent contractors, and for 'that special service was their servant.

We have carefully examined the testimony of all the witnesses, and it could serve no useful purpose to set it out and discuss it in detail. We are of the opinion that the uneontroverted evidence shows that the independent contractors, at the time of the injury to appellees, were engaged in the work of repairing leaks in the gas pipe line that had been laid by them; that Pitts was negligent in leaving the gas turned on; that in turning the gas on and off for the purpose of enabling the contractors to repair the leaks Pitts was in their service in that particular work, and acting for them, and was under their direction and control, and his negligent act in allowing the gas to accumulate and remain in the pipes so long that it caused the explosion was the act of the independent contractors, and for which appellant is not liable.

The uncontradicted proof is that appellant had already inspected the line for leaks and had discovered this leak and had reported the same to the contractors in order that they might repair the same; that their duty to repair then commenced, and the injury to appellees was caused by the work of repair, and not the work of inspection. The work of inspection for the discovery of leaks under the undisputed evidence, devolved on appellants ; but the duty of repairing the leaks, under the contract, was the duty of the independent contractors. To properly perform this duty, the undisputed evidence shows that it was necessary for them to have the gas turned on and off, and the appellant’s inspectors turned ‘the gas on and off in the work of repair only as- they were directed to do so by the contractors. It was the duty of the independent contractors, as we view the evidence, to direct as to the time when the gas should be turned on and when it should be turned off in the work of repairing leaks.

The court, therefore, should have instructed the jury as requested by the appellant, to return a verdict in its favor, and for the error in not doing so the judgments are reversed and the facts now appearing to have been fully developed, the causes are dismissed.