Arkansas Power & Light Co. v. Marsh

• Citation: 115 S.W.2d 825,195 Ark. 1135
• Decision Date: 18 April 1938
• Docket Number: 4-5028
• Parties: ARKANSAS POWER & LIGHT COMPANY v. MARSH
• Court: Supreme Court of Arkansas

115 S.W.2d 825

195 Ark. 1135

ARKANSAS POWER & LIGHT COMPANY v. MARSH

4-5028

Supreme Court of Arkansas

April 18, 1938

Appeal from Hot Spring Circuit; H. B. Means, Judge; affirmed.

Judgment affirmed.

Gordon E. Young, House, Moses & Holmes and Eugene R. Warren, for appellant.

F D. Goza, for appellee.

OPINION

BAKER, J.

This suit was by Ed Marsh to recover damages by reason of injuries suffered by Mrs. Lillie Marsh, his wife. He alleged loss of companionship, expense of medical and doctors' bills, arising out of Mrs. Marsh's injuries, which were caused by her stepping into a hole alleged to have been dug and left unprotected by the defendant, appellant here. The allegations show that this hole was dug at an intersection of Hall and Moore streets, in the town of Donaldson. The hole was put down sometime about 1931. The injury sued for occurred at least four years later. The trial occurred in July, 1937, when the jury rendered a verdict for $ 600 and this appeal is from the judgment rendered thereon.

Appellant to reverse this judgment asserts the following matters:

1. That the testimony failed to show that the hole in question was dug by the Arkansas Power & Light Company.

2. That the court erred in refusing to direct a verdict because the testimony shows that there was no negligence on the part of the Arkansas Power & Light Company.

3. That even if the defendant negligently left the hole open, into which Mrs. Marsh fell, the intervening acts of third parties completely superseded all negligence of the defendant; and,

5. That the court erred in refusing to permit the appellant to introduce photograph of the scene of the accident.

Some other matters were set forth in the motion for a new trial but the foregoing are the only ones presented by the briefs

We cannot think it will be of any real service to set forth with any degree of detail the evidence in this case, and on some of the matters presented, it must be sufficient merely to state our conclusions as to facts as we feel that we are precluded from further consideration of them on account of the record, which discloses that there was at least substantial evidence to support the verdict of the jury. If we were the triers of some of these facts. upon the record as it is presented here, we would probably hold that the preponderance of the evidence was different from conclusions reached in the rendition of the verdict, but we could not say and do not say, after an examination of this record, that there is not substantial evidence to support the findings of the jury. These observations are peculiarly applicable to the first proposition argued upon this appeal, that is that the appellant company did not dig this hole. Two or three witnesses testified positively that employees of the appellant company, known by the witnesses, to be such, did dig or construct the hole that is alleged to have caused the injuries suffered. We must regard that evidence as substantial and the finding of the jury as conclusive thereon.

The second point argued by the appellant is that the company was not guilty of negligence for the reason that the hole was not dug or placed at a point where one might ordinarily be expected to walk or travel, and that on that account there was no negligence. Numerous cases are cited upon this proposition, but we do not think those cases are in point for the reason that, as we recall now, in every case cited, the injured person entered upon the property of another and there fell into some pit or hole or excavation, and it was held in those cases that the owner of the property did not have to make it safe for the protection of trespassers.

These are cases in which the attractive nuisance doctrine does not apply. As we understand the situation in this case, according to the evidence, this hole, for the location of the pole, upon which wires were presumed to have been placed for the transmission of electric current, was dug not upon the sidewalk, as argued by appellee, but between the space which might have been used for sidewalk purposes, though no actual sidewalk structure had been placed there, and that portion of the street ordinarily used for vehicular traffic. To express it differently, the hole was constructed near the gutter line between the place where the sidewalk might have been and the place traveled in the street, but it was not placed upon any property belonging to any individual. One travelling in that particular place or crossing the street at that corner, or moving out of the street to the place of the sidewalk might properly have done so at any time without expecting the dour results of falling into an open hole that had previously been dug at that locality and been left without any kind of cover, guard or notice indicating its location and possible dangers.

It may be said in addition that at the time Mrs. Marsh fell into this hole it was practically overgrown with weeds and grass, as was the place of the sidewalk, and that sidewalk space was also thickly overgrown with weeds and grass, and it was to get out of and away from this that Mrs. Marsh turned out from the sidewalk space to go upon the street as a more comfortable place in which to travel, at the time she fell into the hole. There is nothing to point to her as a trespasser, as one invading another's property without right, nor that she was at any place improper for her to be for any reason whatever. She might reasonably have been expected, we think, to have done just as she did, to have left the high grass and weeds to find a place more comfortable along which to walk.

Without discussing the numerous authorities cited, or any of them, we necessarily pass them with this statement of our conclusions, that they are inapplicable to the foregoing facts.

The third reason assigned by the appellant has given us considerable concern. It is argued that even if the appellant company had dug the hole and left it open as alleged and testified to by several witnesses, there are some intervening agents and agencies which serve to protect the appellant against its original act of negligence.

The facts most briefly stated in this regard are to the effect that about two years prior to the time of the alleged injury, some WPA workers upon the street, using a tractor as one of the machines employed to do the street work, filled up this hole by placing in it a post or pole, eight or ten feet long and perhaps five or six inches in diameter at the end inserted into the hole. In cutting the ditch line or gutter, these men were afraid they might run a wheel of the tractor into this hole, which was said to have been fifteen inches in diameter, and in order that it might be definitely marked, this pole was placed therein. There is some evidence that a few shovels full of dirt might have been thrown in, but this fact, whether true or not, is perhaps immaterial. We think it probably most certain that no one would have stepped into the hole during the time that this pole was left or remained there. When these laborers had completed their job they left the pole still standing as they had placed it. It perhaps remained there for a period of nearly or about two years. During that period two men who testified in the case said they were building a garden or yard fence near this corner and used this pole as an object to which wire stretchers were fastened in order that the wire fence might be properly stretched. It may be said, we think, that the pole was sufficiently well placed that it became a marker, that even though it did not completely fill the hole, it made it highly improbable that anyone might have stepped or placed his foot in the hole without intending to do so. After this pole had been so stationed in this hole for a time, perhaps, more than a year, some boys in the neighborhood, three of whom testified, began to play and swing upon this pole. Perhaps the end of it was bent and it may be that these men who used it to stretch the wire had slightly widened the opening, or it may be that the boys in playing thereon, swinging and turning it about, had somewhat enlarged the opening at the top. At any rate, this pole which had been placed there more than a year prior thereto, perhaps nearly two years, was broken off, about or nearly even with the surface of the ground. This statement, partly surmised, as the evidence is not clear in that respect, is, we think, correct as it may be assumed that the top of the hole, or edge of the same at the surface, was a fulcrum upon which the pole was broken by the boys swinging upon it. There still might not have been very much danger if conditions had been left as they then were, but after breaking this pole, these small boys, thirteen, or fourteen years old, took the broken stump out of the hole and left it open, just as it is said the appellant company left it when it was first dug, fifteen to eighteen inches deep, several inches wide across the top. We think it practically conclusive that during all the time which the pole stood in the hole no one might reasonably have been expected to have fallen or stepped therein. The fact that the pole stood there was in itself a signal or guard, and only by intending to do so might one place his foot therein.

Substantially the foregoing facts are stated and relied upon by the appellant, and the same facts are restated in appellee's brief. There is, therefore, no reason to quote the evidence of any witness tending to establish them.

The question that arises from these facts, as they are stated by both parties, substantially to the same effect, is one of law. However effective...