Arkansas Power & Light Company v. Cummins

• Decision Date: 09 June 1930
• Docket Number: 34
• Citation: 28 S.W.2d 1077,182 Ark. 1
• Parties: ARKANSAS POWER & LIGHT COMPANY v. CUMMINS
• Court: Arkansas Supreme Court

28 S.W.2d 1077

182 Ark. 1

ARKANSAS POWER & LIGHT COMPANY v. CUMMINS

No. 34

Supreme Court of Arkansas

June 9, 1930

Appeal from Conway Circuit Court; W. J. Waggoner, Judge; affirmed.

Judgment affirmed.

Elmer Schoggen and Rose, Hemingway, Cantrell & Loughborough, for appellant.

G. W Clark and R. W. Robins, for appellee.

HUMPHREYS J. CHIEF JUSTICE and MEHAFFY, MCHANEY and BUTLER JJ., concur. SMITH and KIRBY, JJ., dissent.

OPINION

HUMPHREYS, J.

This is an appeal from a judgment of $ 100 for damage to appellee's automobile and $ 10,000 for injury to appellee resulting from a collision between his automobile and one of appellant's street cars at the intersection of Broadway and Ninth Streets in the city of Little Rock, Arkansas.

Appellee alleged that the damage to his automobile and the injury to himself were caused by the failure of appellant's motorman to stop the street car, as required by law, before entering Broadway from the east, and to keep a lookout or sound an alarm, or to stop the street car when the perilous position of appellee's automobile was observable. Appellee also alleged that he was permanently injured about the back, chest, lungs, and other parts of the body, rendered permanently incapable of any sort of gainful labor, and caused to suffer great pain of body and anguish of mind to his damage in the sum of $ 25,000. Also alleged damage to his automobile in the sum of $ 200.

The allegation of negligence and the extent of the injuries were controverted, and the affirmative defense of contributory negligence was interposed by appellant.

The collision occurred at 6:30 o'clock on the morning of November 27, 1928, at which time it was raining and dark. The headlight of the street car as well as the lights in the car were on and in good condition. The headlights of the automobile were on and in good condition. Appellee was traveling south on Broadway, being driven by his son, who was eighteen years of age, with a load of produce which he was taking from his farm in Faulkner County to sell at the curb market in Little Rock. Appellant's motorman was traveling west on said street towards the outskirts of the city, without passengers. At the intersection of the east side of Broadway and the north side of Ninth Street a brick church with high steps is located which obstructs the view to some extent in approaching the street crossing from the east or north. There were only three eye-witnesses to the collision, appellee, his son, and the motorman.

Appellee testified that as they entered Ninth Street slowly they were looking both ways, but could not see the street car approaching from the east on said street until it was near the stop block and until within about three or four feet of the street car track on account of the brick church building; that his automobile had good brakes; that the street car was approaching at a speed of about twenty or twenty-five miles an hour, and, failing to heed the stop block, as they expected it to do, ran into them just as their front wheels crossed the first rail and knocked their car over against the west curb of Broadway; that, had the motorman stopped at the stop signal, they would have had ample time to cross the track before the street car could start again and reach them; that they did not run into the street car, but that the street car ran into his car without slowing down after it passed the stop block; that the impact threw appellee out of the car onto the street, resulting in painful injuries to his body and particularly to his chest, shoulders, and back that produced pneumonia and confinement to his bed for one hundred and five days and permanent injuries which will prevent him from earning a livelihood; that the outer tissue of his lungs was punctured by a broken rib, causing him to expectorate much blood and matter for a long time; that the injury in the chest produced a bone growth that resulted in a stiffness in the neck and shoulders and a nervous affection in his lower limbs which produced an unsteadiness in his step; that at the time of the injury he was forty-two years old, had an expectancy of twenty-five years, and was earning on an average of $ 3 per day; that the left front wheel was torn down, the tire and inner tube torn up, the radiator torn up, the steering wheel torn up, the motor knocked sidewise out of the car, a big hole knocked in the front tire, the carburetor, two spark plugs, and fan wheel torn off, the left fender torn off, the left end of the bumper torn off, and the bumper bent back toward the right or west and the frame of the car bent. He also testified, over the objection and exception of appellant, that the total damage to his automobile was about $ 200, and that his son was a careful driver.

There was no material difference between the testimony of appellee and his son, Velous Cummins, the driver of the car, who testified that as the street car approached there was no bell or gong sounded, and that, when he first saw same, it was within fifteen or twenty feet of the stop block, and that he was about six feet from the street railway track; that he could and would have stopped within that distance, had he known or believed the street car motorman would not have stopped at the stop block, but, when he discovered that he had ignored the stop block and failed to check his speed of twenty or twenty-five miles an hour, he was practically upon the track, and could not stop before the street car struck him; that he continued on his way after first seeing the street car because he relied upon the motorman to obey the traffic law at the stop block before entering Broadway. He was recalled in the afternoon, and denied that in testifying during the morning he had said he could not see the street car until it got to or near the stop block, but, as a matter of fact, he did see it about twenty feet east of the stop block.

E. P. Chastain, the motorman, testified that he was running the street car at a speed of ten or twelve miles an hour as he approached Broadway, and that he stopped the car at the stop block on the east side of Broadway, and, after looking north and south for autos or pedestrians, and seeing neither, he proceeded at an ordinary speed west, and was almost across Broadway when he observed appellee's automobile traveling south at a rate of ten or twelve miles an hour; that it ran head end into the street car, striking it with full force; that he immediately applied his emergency brakes, and, as soon as the car stopped, he went back and assisted in pushing the automobile away from the car and around to the west; that appellee, his wife, and son were sitting in the front seat, and a little girl in the back seat; that they explained to him that the collision was due to the worn condition of the brakes on appellee's automobile.

Appellee's wife and son denied making the statement, and said they charged the motorman with failing to stop at the stop block and that he walked away without denying the charge.

Dr. A. G. McGill testified, over the objection and exception of appellant, that the injuries to appellee's back resulted in the disturbance of the reflexes in the lower limbs causing an unsteadiness when on his feet, and also resulted in a disturbance in his bladder and rectum.

Appellant first contends for a reversal of the judgment, upon the alleged ground that there is such a variance between the testimony of Velous Cummins given in the morning and that given in the afternoon that he is wholly discredited and his testimony worthless, hence the court should have disregarded it and instructed a verdict for appellant upon the theory that the motorman's evidence relative to the collision was true and undisputed. We have read the testimony of Velous Cummins very carefully and find no material conflict in it, but, even if there were, appellee adhered to his own statement throughout the trial, and his testimony contradicts that of the motorman.

It is also insisted that the testimony introduced by appellee relative to the collision is contrary to the physical facts that the spring under the middle of the car was displaced and found on the ground after the collision. There is some testimony tending to show that the only way the spring could have been displaced was by a heavy jar in the center of the car opposite the spring; that, had the front end of the car been raised by a collision, the effect would have been to cause the body of the car to press down the tighter on the spring and hold it in place instead of disconnecting and loosening same so as to cause it to fall out on the ground. The...