Arkansas Power & Light Company v. Dillinger

• Decision Date: 11 December 1933
• Docket Number: 4-3209
• Citation: Arkansas Power & Light Company v. Dillinger, 66 S.W.2d 291, 188 Ark. 401 (Ark. 1933)
• Parties: ARKANSAS POWER & LIGHT COMPANY v. DILLINGER
• Court: Arkansas Supreme Court

66 S.W.2d 291

188 Ark. 401

ARKANSAS POWER & LIGHT COMPANY v. DILLINGER

4-3209

Supreme Court of Arkansas

December 11, 1933

Appeal from St. Francis Circuit Court; W. D. Davenport, Judge affirmed.

STATEMENT BY THE COURT.

This appeal comes from a judgment in favor of appellee, S Dillinger, against the appellant, Arkansas Power & Light Company, returned in the St. Francis Circuit Court on a verdict of the jury for damages growing out of personal injuries received by appellee as a result of a collision between the appellant's street car and appellee's automobile on Lewis Street, where it is crossed by 23d Street, in the city of Little Rock, on June 6, 1931.

Appellee was traveling west on 23d Street and the street car of appellant was traveling north.Lewis Street runs north and south, and appellant's car track is on that street, while 23d Street runs east and west.Prior to, and at the time of the collision there was a store building on the southeast corner of 23d and Lewis streets, the store facing north, or 23d Street, with a porch extending out 6 or 7 feet in front of said store building.There was also attached to the front or northwest corner of the store building and a post in the ditch, just west of the store itself, a large sign about four feet wide and between 10 and 14 feet long.The sign was resting on about 18 inches of lattice, and obstructed the view of appellee as he approached the street car tracks on Lewis Street until he was upon the little culvert and within about 15 feet of the nearest street car rail, looking to his left or to the south.

Appellee was driving a 1927 model "T" Ford touring car, and from the front end of his car to the front seat where he was sitting is 7 feet, and the street car is about 8 feet wide and extends over the rails about 2 feet on each side.When appellee first saw the street car, he was on the little culvert, and at that time the street car was about 65 or 70 feet away, traveling at the rate of about 35 miles per hour.Appellee saw the motorman at the time, and he was not looking ahead, but was looking to one side.At the time appellee first saw the street car, the front end of his automobile was within 4 to 6 feet of where it could have been hit by the street car if it continued its course or stopped.Appellee could not stop his automobile or keep it from rolling into the path of said street car, so he attempted to race his automobile across the street car tracks to avoid being hit by said street car, and only lacked about 18 inches of getting his automobile across the tracks when he was struck.The motorman of appellant's street car did not slacken his speed until he hit the appellee's automobile.He did not ring a bell or sound a gong on approaching said crossing, and ran into the intersection or crossing without looking to see whether any one was about to cross the tracks.There was considerable traffic moving to and fro over appellant's tracks across 23d Street, which is a thickly populated and built-up section of Little Rock.At the time appellee first saw appellant's street car, he and his automobile were well within the intersection of Lewis Street and the street car was 65 or 70 feet from the intersection of 23d Street.The street car could have been stopped within 25 or 30 feet traveling at the rate of 35 miles per hour.Appellee's automobile was hit about 18 inches from the back end and thrown against a telephone pole on the north side of 23d Street and demolished.The street car, after striking the automobile, ran about a car length or more before stopping.Appellee, as a result of the collision, sustained severe and permanent injuries to his back, spine and neck.

Appellee relied for recovery on the negligence of the motorman of appellant and upon the doctrine of the last clear chance of appellant's operative to have avoided the injury to appellee after discovering his perilous position upon its tracks.

Appellant's defense was a general denial of all the material allegations as to the negligence of the motorman and a plea of contributory negligence on the part of the appellee as a bar to his right of recovery.

The testimony is voluminous, and any further necessary statement of it will be set out in the opinion.

The case was submitted to the jury upon instructions from the court, some of which, especially No. 1 given for appellee were objected to and insisted upon as erroneous.The jury returned a verdict for appellee, and from the judgment thereon this appeal is prosecuted.

Judgment affirmed.

Rose, Hemingway, Cantrell & Loughborough and J. W. Barron, for appellant.

M. B. Norfleet, L.A. Hardin and C. W. Garner, for appellee.

OPINION

KIRBY, J., (after stating the facts).

It is insisted that said instruction No. 1, given for appellee, is erroneous in that it required a higher degree of care to be exercised by the motorman in proportion to the greater danger to be avoided than the law warrants.Said instruction reads as follows: "The court instructs the jury that the defendant in the operation of its street cars in the city of Little Rock over and across streets that people...