Bolen Darnall Coal Co. v. Rogers
| Decision Date | 01 May 1911 |
| Citation | 138 S.W. 465 |
| Parties | BOLEN DARNALL COAL CO. v. ROGERS et ux. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Sebastian County; Daniel Hon, Judge.
Action by W. Rogers and wife against the Bolen Darnall Coal Company. From a judgment for plaintiffs, defendant appeals. Affirmed.
Vincent Miles, for appellant. Read & McDonough and Geo. W. Dodd, for appellees.
The plaintiffs, Will Rogers and his wife, Ewing Rogers, joined in an action against the Bolen Darnall Coal Company to recover damages sustained by reason of personal injuries of the wife which resulted from falling into a hole dug in the street of the town of Hartford, Ark., by servants of said defendant, for the purpose of setting a pole. The defendant operates an electric light plant under a franchise granted by the town council, and the new pole was to be set to replace an old one used in supporting the wires which carried the electric current. Negligence of defendant is charged in leaving the hole uncovered and unguarded for several days. This was in the residence portion of the town. There was no sidewalk nor curb, and the old pole was situated just inside of the curbline. There was a footpath, about two feet wide, about where the sidewalk should have been, and the hole was dug beside the old pole, the hole cutting a few inches into the side of the path. Mrs. Rogers was walking along the path in the daytime and stepped on the edge of the hole and the earth caved, allowing her foot to slip into the hole. She fell and was severely injured. She testified that she did not know the hole was there, and did not see it until she fell. There was no other testimony tending to show that she knew the hole was there. She stated that she did not remember in what direction she was looking at the time. Another witness testified that she was looking away from the direction of the hole, back towards a house on which the witness and another carpenter were at work.
Leaving the hole uncovered was sufficient to warrant a submission to the jury of the charge of negligence against the defendant. Helena Gas Co. v. Rogers, 135 S. W. 904.
Defendant objects to instructions given at plaintiffs' request, on the ground that they erroneously state, as a matter of fact, that it constituted negligence to leave the hole open and uncovered, instead of submitting the question to the jury whether or not that constituted negligence. Defendant is not, however, in position to complain at the giving of those instructions, for it asked and the court gave other instructions, embracing the statement of law that there was a duty resting on defendant to exercise care to keep the hole covered.
Defendant pleaded contributory negligence on the part of Mrs. Rogers in failing to see the hole before she stepped into it, and it is insisted that the court should, on the undisputed evidence, declare, as a matter of law, that she was guilty of negligence which bars recovery of damages. The hole was 18 or 20 inches across the top and about 5 feet deep. It extended about 12 inches inwards towards the path beyond the line of the old pole. There was some evidence that the path was fringed with fennel on both sides. This might have obscured the hole to some extent, though witnesses testified that it could be seen by a pedestrian going in that direction. No one testified that the removed earth was piled near the hole. We do not think it should be said as a matter of law that Mrs. Rogers was guilty of negligence in failing to discover the hole before she stepped into it. A traveler, going along a public pathway or sidewalk, who has no knowledge of a hole or other obstruction, has the right to assume that the way is in a reasonably safe condition, and may act upon that assumption, but must exercise the degree of care for his safety which a reasonably prudent person is expected to employ under similar circumstances. In other words, he must exercise ordinary care for his own safety, notwithstanding his right to assume that the way is reasonably safe. He is not bound to keep his eyes centered on the walk ahead, but, on the other hand, he cannot shut his eyes to the danger or otherwise put himself in position that he cannot discover and avoid danger. The evidence in this case shows, at most, only that Mrs. Rogers was inattentive and momentarily looked away from the path. She was not walking backwards, nor did she constantly keep her eyes turned in another direction so that she could not see the pathway ahead. Under those circumstances, it was a question for the jury whether or not sh...
To continue reading
Request your trial