Arkansas Power & Light Co. v. Connelly

• Citation: 49 S.W.2d 387
• Decision Date: 25 April 1932
• Docket Number: No. 269.,269.
• Parties: ARKANSAS POWER & LIGHT CO. v. CONNELLY et al.
• Court: Supreme Court of Arkansas

Page 387

49 S.W.2d 387

ARKANSAS POWER & LIGHT CO. v. CONNELLY et al.

No. 269.

Supreme Court of Arkansas.

April 25, 1932.

Rehearing Denied May 23, 1932.

Appeal from Circuit Court, Yell County, Dardanelle District; A. B. Priddy, Judge.

Action by Harold Connelly, a minor, by next friend, E. C. Connelly, and E. C. Connelly, against the Arkansas Power & Light Company. From judgment for plaintiffs, defendant appeals.

Affirmed.

Rose, Hemingway, Cantrell & Loughborough and Elmer Schoggen, all of Little Rock, for appellant.

Caviness & George, of Danville, Neill Bohlinger, of Dardanelle, Sam T., Tom and Donald Poe, of Little Rock, for appellees.

McHANEY, J.

E. C. Connelly, for himself and as father and next friend of his infant son, Harold Connelly, brought this action against appellant to recover damages for personal injuries sustained by said infant by being struck by a street car of appellant on West Eleventh street in the city of Little Rock. A trial resulted in a verdict and judgment for himself in the sum of $1,500, and as next friend for the infant in the sum of $3,500.

Three general assignments of error are relied upon for a reversal of these judgments: (1) That the court erred in the admission of testimony; (2) in the instructions; and (3) in refusing to direct a verdict for it at its request.

We discuss these assignments in the reverse order. At the conclusion of the testimony for appellees and again at the conclusion of all the testimony, appellant requested a directed verdict in its favor on the ground that the evidence was insufficient to support a verdict against it, either for the infant or the father. The court refused these requests, and they are now pressed for our consideration. This assignment must be overruled if there is any substantial evidence to support the verdict, viewing it in the light most favorable to appellees. A brief statement of the evidence viewed in this light follows: On March 30, 1931, Mr. Connelly, a widower, with his twin children three years and nine months of age, a nurse and housekeeper, and a young lady, lived at the corner of West Eleventh and Washington streets in Little Rock, on the south side of West Eleventh. One of appellant's double lines of street car tracks is on West Eleventh and occupies a large portion of said street which is not paved. On the north side of this street, between Peyton and Washington, there is a large ditch which has been covered with plank, or bridged to afford ingress and egress to the property on the north side of the street, except for about 100 feet east of Washington, where the ditch is not covered. On the above date Mr. Connelly left the home to go to town, and at that time the children were playing in the front yard with some neighbor children, all being in the immediate custody of the nurse of the latter children. Shortly thereafter said nurse took them all across the street (and of course across the car tracks) in a northeasterly direction to a sand pile in the front of a neighbor's yard where they were playing. The Connelly nurse and housekeeper discovered their absence, saw them across the street, and called them home. They started home in obedience to the call, but one of appellant's street cars, traveling west, struck Harold, knocked him down, ran over his right foot, and cut or mashed off three toes, part of a fourth toe, and otherwise bruised and injured him. The car traveled a car length or more before stopping after striking the child. At that time of year, the children at the sand pile could have been seen by the motorman on the street car for a considerable distance east, and the child in the street could have been seen for a block or more east of the place of injury. The child in going home went across the ditch on the plank covering, and was going in a southwesterly direction, and traveled some distance in the street before reaching a danger point on or near the track, and could have been seen by the motorman, if a proper lookout had been kept, in ample time to have avoided injury to him. An eyewitness to the accident says the motorman, as he came down the street, was looking to the south, and apparently talking to a passenger who was standing on the car. Failure of the motorman to keep a proper lookout was the ground of negligence alleged and relied on, and that he saw, or by the exercise of ordinary care could have seen, the child in time to have averted the injury. We think the evidence sufficient to take the case to the jury both as to negligence and the proximate cause of the injury. But appellant says the testimony of the eyewitness who says the motorman was looking to the south is demonstrably false, because she could not have seen what she says she saw. We think appellant is mistaken in this argument. She stopped her car at the corner of Washington and Eleventh, and could have seen the incidents testified to. At any rate her credibility was for the jury. There was therefore substantial evidence before the jury, and appellant must fail on this assignment. It is insisted, however, that Mr. Connelly cannot recover in his...