Bolen-Darnell Coal Co. v. Rogers
| Decision Date | 01 May 1911 |
| Citation | 138 S.W. 465,99 Ark. 254 |
| Parties | BOLEN-DARNELL COAL COMPANY v. ROGERS |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; affirmed.
Affirmed.
Vincent M. Miles, for appellant.
1. In the light of the facts disclosed in evidence of the physical surroundings, that it was broad daylight and that any one passing along the path could see the hole, no human foresight could have anticipated an accident. There was therefore no negligence on the part of appellant on which appellee could predicate a right to recover.
2. Appellee was guilty of contributory negligence. The sidewalk or path was known to her to be rough and washed out, and it was her duty to use her senses, especially that of sight, in the exercise of ordinary care for her own safety. 186 Mo 573; 85 S.W. 532; 179 Mo. 572; 221 Pa. 294; 70 A. 755; 95 Va 16; 27 S.E. 812; 80 Ill. 119; 211 Pa. 569; 61 A. 80; 182 Pa 143; 40 A. 818; 125 Mich. 511; 84 N.W. 177; 117 Ind. 324; 20 N.W. 235; 111 S.W. 279; 54 Ia. 717; 7 N.W. 91; 34 W.Va. 848; 71 Ia. 654; 33 N.W. 160; 32 Grat. 792; 112 Ind. 153; 93 Ark. 489; 90 Ark. 387.
3. Appellant was entitled to an instruction to the effect that if plaintiff knew that the walk was rough and washed out in places, it was her duty to look where she stepped; and if she fell and was injured while not looking or paying attention to where she was walking, she could not recover. This feature of the case was not covered by any other instruction. 112 Ala. 98; 20 So. 424; 120 Mich. 295; 79 N.W. 572; 12 Ill.App. 122.
Read & McDonough and George W. Dodd, for appellees.
1. It was appellant's duty to take all necessary precautions to prevent persons using the highway, either in daytime or at night, from receiving injury. 15 Am. & Eng. Enc. of L. 435; Elliott on Roads & Streets, § 821; 97 P. 881.
It was appellant's duty, in the exercise of reasonable care, to cover up the hole, or erect suitable barriers or signals to prevent injuries to passers by. 5 Thompson on Neg. §§ 6008, 6055; 115 S.W. 19; 215 Mo. 299.
2. Plaintiff was not guilty of contributory negligence. The jury were specifically charged that the fact that she was passing along a highway did not relieve her of the duty to exercise ordinary care to avoid danger, and that if she failed to exercise the care that a reasonable and prudent person would have exercised under the circumstances, and such conduct contributed directly to her injury, she could not recover. A pedestrian has the right to assume that the roadway is safe for travel. All that is required of him is ordinary care, and this does not necessitate his looking constantly where he is going. Contributory negligence is a question of fact for the jury. 118 La. 77; 42 So. 652; 15 Am. & Eng. Enc. of L. 466 and notes; Id. 467; 71 Wis. 463; 37 N.W. 813; 73 A. 1086; 105 Me. 189; 94 Ga. 420; 20 S.E. 355; 75 Ill.App. 174; 103 Tenn. 368; 53 S.W. 734; 3 Lawson, Rights, Rem. & Prac. § 1169; 110 Mass. 334; 18 N.E. 217; 10 Wash. 464; 54 Minn. 398 and cases cited; 75 S.W. 322; 134 S.W. 957.
The plaintiffs, Will Rogers and his wife, Ewing Rogers, joined in an action against the Bolen-Darnell 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, Arkansas, 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 curb-line. There was a foot path, 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 day time, 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, 98 Ark. 413, 135 S.W. 904.
Defendant objects to instructions given at plaintiff's 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 of 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 five 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 can not 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 eves 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 she was guilty of negligence. Different minds might reasonably draw different conclusions as to that, and it should have been left to the jury. Elliott on Roads & Streets, §§ 635, 637, 638; Weber v. Union, etc., Co., 118 La. 77, 42 So. 652; McCormack v. Robin (La.) 126 La. 594, 52 So. 779; Cantwell v. Appleton, 71 Wis. 463, 37 N.W. 813; Crites v. New...
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