Bain v. Fort Smith Light & Traction Company

• Decision Date: 04 January 1915
• Docket Number: 88
• Citation: 172 S.W. 843,116 Ark. 125
• Parties: BAIN v. FORT SMITH LIGHT & TRACTION COMPANY
• Court: Arkansas Supreme Court

172 S.W. 843

116 Ark. 125

BAIN v. FORT SMITH LIGHT & TRACTION COMPANY

No. 88

Supreme Court of Arkansas

January 4, 1915

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; affirmed.

STATEMENT BY THE COURT.

The appellant was a United States mail collector, and under an ordinance of the city of Fort Smith, in case of conflict, had the preferential right-of-way over the appellee in the use of the streets. While in the discharge of his duties, he drove his cart to the mail box at Manhattan Cafe on Garrison Avenue, stopped the cart about four feet from the box, which was at the curb, gathered the mail from the box, and as he locked the box his horse started across the street, as he was in the habit of doing, to the mail box on the opposite side. Appellant jumped into the cart when same was ten or twelve feet from the curb, and about the middle of the street between the curb and the first car track. At this time the street car was at or crossing Fifth Street, about seventy-five feet away. Appellant did not know the speed the car was going. It increased its speed after crossing Fifth Street, but appellant thought the motorman would check the speed and control the car so as not to run over him. This the motorman could have done had he applied the brakes in time but the motorman did not check up the speed of the car until he was within ten or twelve feet of appellant's cart when he made a hurried effort to do so. Appellant's wagon nearly cleared the track, but the hind wheel was struck by the car, causing appellant's horse and cart to be dragged against the first trolley post east of the point of contact which was more than fifty feet from where appellee's car struck the cart of appellant. Appellant was thrown against an iron rod around the top of the cart, and in this way he alleges that he received the injuries of which he complained. The distance from the west side of Fifth Street, where the car first stopped or slowed up, was ninety-three feet from a point opposite the Manhattan box, the cart being struck a few feet west of that point.

The appellant's official and usual route in collecting the mail was to go from the Manhattan box to the box on the corner of Fifth and Garrison Avenue on the opposite side. That this was appellant's usual and official route was known to the motorman. From the curb to the first rail of the track was a little over thirty-five feet. The track was about five feet wide, and the horse and cart were about fifteen feet long. There was nothing to obstruct the view of the motorman, and he could have seen the appellant collecting mail at the Manhattan box and could have seen appellant's cart in starting from the Manhattan box to the box on the opposite side of the street.

The appellant sued the appellee for damages, alleging that its motorman was running the car at a dangerous and high rate of speed; that the motorman did not sound any bell or alarm that he could have seen appellant by exercising ordinary care; that he ran upon appellant without warning, and by reason of these acts of negligence appellant was run down and seriously injured.

The appellee denied the allegations of negligence, and set up that the appellant was driving his cart in violation of the city ordinances, and that the collision was caused solely through the negligence of the appellant.

The testimony on behalf of appellant tended to establish the facts as above stated. The testimony on behalf of the appellee tended to show that appellant caught up with and jumped into his mail cart when same was on appellee's car track directly in front of the street car; that the motorman when the horse's neck was about across the first rail of the car track, applied the brakes and reversed the current to stop the car, at which time the same was thirty or thirty-five feet away, going at a speed of four or five miles an hour, the current having been shut off, and the car was being carried by its own momentum; that the car stopped within two feet of where it hit appellant's cart; that the motorman attempted to stop the car as soon as he discovered appellant's dangerous position, but was unable to stop it in time to prevent the collision. The car was a light single truck car, with one passenger. The motorman applied the brakes as soon as the neck of the horse crossed the first rail, sounded the bell and made a good stop. Appellant was not thrown out of the cart, which was pushed up to within two feet of the trolley post, but stepped out of the same and gathered up his mail, complained only of having his hand slightly hurt, went away, and afterward during the day was seen gathering up the mail on his route.

The testimony on behalf of the appellant tended to show that the injuries of which he complained at the time of the trial were produced by the collision, while the testimony on behalf of the appellee tended to show that the injuries and suffering of which he complained at the time of the trial were from other causes, and that appellant, by reason of the collision, only received a slight injury to his hand.

The above were the issues and substantially the facts adduced in evidence on behalf of the respective parties, and upon which the case was sent to the jury, whose verdict was in favor of the appellee, and from the judgment rendered in appellee's favor this appeal has been duly prosecuted.

Appellant complains of the rulings of the court in granting and refusing prayers for instructions and upon the admission and rejection of testimony. We will discuss the grounds urged for reversal in the opinion.

Judgment affirmed.

Ira D. Oglesby, for appellant.

1. The court, by refusing to give instruction 4 and modifying instruction 5, requested by appellant, gave no correct guide as to the rights of appellant under the ordinance, and tended to discredit the theory that appellant had any right-of-way superior to that of appellee. 84 N.Y.S. 514.

2. Instruction 5, given at appellee's request, was clearly erroneous, and was equivalent to a peremptory instruction. It limited the duty of the motorman to an effort to stop the car "as soon as he saw plaintiff in a position of danger." This is not the law. It was his duty to keep a reasonable lookout along the streets to observe persons attempting to cross where they had the right to do so, and if by his negligence in failing to do this a collision occurs, defendant is liable. 42 Ark. 321; Nellis on Street Railways, § 381; Sherman & Redfield on Negligence, § 485-c; Booth on Street Railways, § 306; 81 Mo. 466; 24 S.E. 953; 50 So. 632.

This instruction is in direct conflict with instruction 13, so that the jury were left without a correct guide as to the duty of the motorman.

Instruction 6 was erroneous in two particulars; first, in declaring that if appellant did not look and listen for the approaching car before attempting to cross, the jury should find for the defendant. It should have been left to the jury to say whether such failure, if shown, was, under the circumstances, negligence. 108 Ark. 95. Second, in directing a finding for the defendant, if the jury "believed that plaintiff saw or could have seen the approaching car and drove or permitted his horse to go upon the track in front of said car." 70 N.W. 408; 66 A.D. 554; 40 Id. 307; 1 St. Ry. Rep. 434; 43 S.E. 618; 46 A. 779; 108 N.Y. 354; 7 A.D. 253; 36 P. 673; Sherman & Redfield, Neg., § 485-c; Nellis on Street Railways, 343.

Instruction 11, upon the burden of proof, errs in telling the jury that if the testimony is equally balanced as to whether plaintiff's condition was due to the accident, he can not recover, without defining what is meant by "equally balanced."

3. The court erred in refusing to permit appellant to prove the distance in which a car going at the speed fixed by appellee's witnesses could be stopped. The testimony of the witnesses offered by appellant for this purpose was certainly admissible to disprove that the car was going only four or five miles an hour; the statement of appellee's witnesses that if going at such speed it could not be stopped in less than thirty feet, and also the statement that a quick or good stop was made. Jones on Evidence, § 809; Wigmore on Evidence, 2477; 99 Ind. 569; 4 So. 524; 17 So. 505; 67 S.W. 237; 20 N.E. 819; 55 Ark. 164.

Jos. M. Hill and Henry L. Fitzhugh, for appellee.

1. Appellant, in requesting the giving of instructions 4 and 5, assumed that the city ordinance could create a cause of action. This is not the law. While the ordinance was not admissible in evidence, as we think, yet the court permitted its introduction, and then in instructions given explained to the jury the legal effect thereof. A city ordinance can not alter the common law rights of parties. This ordinance created no liability upon the part of the company, nor did it give the plaintiff a cause of action. 1 Nellis on Street Railways, 493; 23 Am. Rep. 507; 28 So. 87; 43 S.W. 432; 57 S.W. 707; 36 Cyc. 1561; 6 Thompson, Com. on Negligence, 1374.

2. There is no merit in appellant's objection to instruction 5 given at appellee's request. The use of ordinary care in the management of the car necessarily included the keeping of a proper lookout. The instruction was complete and unobjectionable as it stood, but when read in connection with instruction numbered 13, given at appellant's request, the jury could not have been misled. Moreover, if instruction 5 was defective in verbiage, it was appellant's duty to make specific objection at the time and point out to the court its defects. 93 Ark. 589; 104 Ark. 409; 87 Ark. 396.

3. Instruction 6 is correct. When an approaching car is in plain view, it is negligence per se to drive immediately in front of such car without looking or listening, and under...