Bona v. Thomas Auto Company

• Citation: 208 S.W. 306,137 Ark. 217
• Decision Date: 13 January 1919
• Docket Number: 59
• Parties: BONA v. THOMAS AUTO COMPANY
• Court: Arkansas Supreme Court

208 S.W. 306

137 Ark. 217

BONA v. THOMAS AUTO COMPANY

No. 59

Supreme Court of Arkansas

January 13, 1919

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge reversed.

STATEMENT OF FACTS.

April 23, 1917, James Bona, Jr., was run over and killed by an automobile. He was a little over three years of age, and was standing on the steps of his home at the southeast corner of Fourth and Spring streets, Little Rock, Arkansas. The car was being driven by L. G. Hinkson, an employee of S. R. Thomas Automobile Company and S. R. Thomas, who at the time had the possession and control of the car.

This suit was instituted by Jim Bona, Sr., appellant, as administrator of the estate of James Bona, Jr., against S. R Thomas Auto Company and S. R. Thomas, appellees. Appellant sued for the benefit of himself as the father and sole heir of Jim Bona, Jr., deceased, and also for the benefit of the estate of the deceased to recover damages for the injury sustained in the killing of Jim Bona Jr.

The complaint alleged, "that the driver was operating the automobile around the corner of Fourth and Spring streets, at a reckless rate of speed and without having his automobile under control, and that by reason of said carelessness and negligent running and operating of said automobile, intestate was struck and fatally injured."

The answer specifically denied all the allegations of the complaint.

The testimony adduced on behalf of the appellant on the issue of negligence is substantially as follows: One witness testified that he got off the street car at Fifth and Spring streets and as he was going north on Spring street towards Fourth a car passed him going north "at a terrible rate." When the automobile went to turn the corner going east on Fourth street "it looked like it was going so fast it lifted him (driver) off of his seat as he went to turn. The car passed witness about middle of the block between Fourth and Fifth streets about 150 feet from the corner of Fourth. Witness proceeded to the corner of Fourth and found that the child had been run over. The car was running when it passed witness twenty-eight or thirty miles an hour, and its speed attracted witness' attention. Witness was going in the same direction that the car was going and watched it until it turned the corner. Witness did not know either Hinkson or Thomas and had no interest one way or the other in the case.

Another witness, a colored man working for Underwood Typewriting Company, going south between Third and Fourth on Spring street noticed a car coming north on Spring street about the middle of the block between Fourth and Fifth. Witness had driven a car himself. Witness drove at a speed of between fifteen and seventeen miles per hour and the car that witness saw was going faster than witness drove. In describing how the driver turned the corner witness stated: "It was going fast, for the man had to snatch his gear that way (indicating), raise up in his seat; you could tell from the rate he was raising that he had to snatch it to turn it; he couldn't have made the turn at the rate the car was going without snatching it. He had to jerk it." Further along the witness said: "The car was meeting me and I stopped. I noticed how the car was running, and he went to go in that curve and I stood there to get behind a big tree that was standing there, because I had heard of cars getting out from under the control of men, and I had seen cars get out from under control when I was riding in them. * * * I got ready to get behind that tree to keep from getting hit. The car was coming mighty fast, between twenty and twenty-five miles, I guess, and if it got from under his control it could come up on the sidewalk and hit me. He turned the corner at about a speed of twenty-five or thirty miles, I couldn't say just how fast it was going." Witness decided to get in a safe place not knowing the driver intended to turn down Fourth street until he snatched the car.

Another witness, a minister in charge of a church in Argenta, was in front of his boarding house, the second house from the corner on the east side of Spring street, and saw this car passing. It was going north on Spring and turned east at the southeast corner of Fourth. It was about twenty feet from the corner when witness first saw it. Witness saw the car when it struck the curbing and then struck the steps. It struck the curb two or three feet from the corner, ran up on the sidewalk six or eight feet then struck the steps. The child was either on the first or second step Witness' attention was first attracted to the car because it was going very rapidly. Witness had seen several pass there very rapidly before and witness had to cross over Spring street to go to his home on Broadway and he was cautiously looking out for cars because he did not wish to be run over.

There was testimony adduced by the appellees tending to prove that the car in controversy was being driven on Spring street at from 8 to 12 miles per hour and as it turned the corner at Fourth and Spring it was not going so fast. That a car going ten miles an hour on a level straight street with no dampness could be stopped with perfect brakes in fifteen feet.

One witness testified, over the objection of the appellant, that either the day following or the second day following the accident he examined the car that caused the injury while it was in the possession of Thomas. The car was not running when he examined it. The car was locked, "that is when the steering wheel is cramped over to the right to the full limit it was impossible to turn it back without a terrific strain." If turned as far as the wheel would allow it would lock. Witness could not say what it would do if it was not turned all the way. It locked while standing still. The car could be driven straight ahead without locking but could not make a right angle turn around a street corner. Witness was an expert automobile man.

Another witness, an expert in automobile engineering, testified over objection of appellant that he was particularly familiar with the steering gear of the Dodge car. He was permitted over the objection of the appellant to exhibit the steering gear of an automobile made by the Dodge people and to explain the manner of its construction and how it worked. Witness went into detail giving reasons why the steering of a Dodge car after it had been driven for any length of time would cause the assembly to get loose and cause the gear to lock when turned to either the right or the left. Witness had not examined the car that caused the accident but the general principle of the machinery was the same in that car as in the car owned by witness, which was a Dodge, and which on two occasions had jammed on him.

There was testimony tending to show "there was no damage done to the car whatever by the collision."

Over the objection of the appellant witnesses were permitted to testify that a day or two after the injury a test or locking of the steering gear of the car that produced the injury was made in front of appellee's place of business, and it was found that by turning the steering gear as far as it could be turned either way it would lock the car.

Over the objection of the appellant a witness who had visited the scene where the injury took place was permitted to introduce a map or plat showing the location of the occurrence and measurements showing distances, et cetera, of the various objects disclosed by the testimony. The plat or drawing was made the day before the witness testified which was one year after the accident occurred. It was made from typewritten record of measurements that witness had taken at the time he visited the scene of the injury, on the day after the occurrence.

The driver of the automobile testified that, after he turned the corner, when he found that he could not turn the car back into the street by the use of the steering gear he began to use the foot brakes in an effort to stop. He did all that a man could do to stop. It all happened in an instant.

The appellant presented various prayers for instructions which the court refused to grant and to the ruling of the court the appellant duly excepted. The court gave appellee's prayer number one as follows:

"You are instructed to find for the defendant." To which ruling appellant duly objected and excepted. The jury returned a verdict in favor of the appellees and from the judgment rendered in their favor is this appeal.

Judgment reversed and cause remanded.

Robert L. Rogers and Geo. W. Hays, for appellant.

1. It was clearly error to direct the verdict of the jury. If it directed the verdict on the theory that the alleged locking of the steering gear caused the injury, and that this alone was the proximate cause of the injury, the action of the court cannot be upheld, because the fact that Hinkson was the only one who testified that the steering gear locked, and that no one controverted, nor was in position to controvert that statement, does not, in law, render his evidence on that point undisputed. 82 Ark. 86; 88 Ark. 550; 114 Ark. 393; 89 Ark. 273; 76 Ark. 132. If defendant's testimony be taken as true that the automobile was running at a speed not exceeding ten miles an hour, that was prima facie negligence. Acts 1911, p. 101. And was the proximate cause of the injury. 108 Ark. 326.

Under the evidence introduced, the question whether or not the driver was guilty of negligence which produced the injury and whether the steering gear did or did not lock, was for the jury, if the testimony was such that reasonable and fair-minded men might reach different conclusions therefrom. 89 Ark. 522; 131 Ark. 197.

We contend that the steering gear did not lock, but that the driver lost control through his...