Breashears v. Arnett

• Decision Date: 24 May 1920
• Docket Number: 5
• Citation: 222 S.W. 28,144 Ark. 196
• Parties: BREASHEARS v. ARNETT
• Court: Arkansas Supreme Court

222 S.W. 28

144 Ark. 196

BREASHEARS v. ARNETT

No. 5

Supreme Court of Arkansas

May 24, 1920

Appeal from Yell Circuit Court, Danville District; A. B. Priddy Judge; affirmed.

Judgment affirmed.

Geo. E Floyd, for appellant.

1. Plaintiff, as a reasonable person, must have known it was extremely hazardous to cross the street at the time and in the manner she did and as the evidence shows. The doctrine of contributory negligence is well established by our authorities. It was prejudicial error to refuse instruction No. 4, asked by defendant, also Nos. 3 and 21. The evidence fully and clearly proves contributory negligence.

2. The damages are excessive. At most plaintiff was only entitled to nominal damages.

Chambers & Wilson and Heartsill Ragon, for appellee.

1. Three grounds of negligence were alleged by appellee: (1) appellant was running his car at an unusual rate of speed (2) he did not have it under proper control, and (3) he sounded no warning.

2. There is no error in the instructions given or refused. 61 Ark. 381; 62 Id. 118; 78 Ark. 426; 84 Id. 241; 102 Id. 499; 88 Id. 524; 91 Id. 388; 81 Id. 187; 79 Id. 378.

3. The verdict is not excessive. The testimony would have warranted a much larger verdict.

OPINION

WOOD, J.

The appellee and her escort, Jack Walker, and Miss Eunice Holman and her escort, E. A. Mathis, all attended a moving picture show in the town of Plainview, Yell County, Arkansas, on the night of May 4, 1918. After the show was over appellee and her companion started across the street to a drug store for cold drinks. The street was eighty feet wide and there were about 150 people on the street at the time and a number of automobiles. Appellee and her companions were crossing at about the middle of the block. There were public crossings, but there were no car lines on the street and the people went across the street anywhere. Coming out of the picture show the people went straight across the street.

Appellee and Walker were within about ten feet of the curb on the opposite side of the street from the theatre and going toward the drug store when the appellant, who was driving a Ford occupied by himself and several young ladies, ran upon the appellee and Walker. Walker saw that appellee was in direct track of the car and tried to shove her out of the way, but failed. Appellant struck the appellee causing personal injuries for which she brought this action against the appellant to recover damages.

Appellee alleged that the appellant was negligent in running his car at an unusual rate of speed; that he did not have his car under proper control and that he did not sound any alarm warning appellee of the approach of his car.

Appellant denied the allegations of the complaint as to negligence and set up the defense of contributory negligence.

The appellee and her companions testified that the car was being driven by appellant at a greater speed than cars are ordinarily run upon the roads or streets. Appellant testified that he supposed he was going about ten miles per hour. Several witnesses testified on behalf of the appellant to the same effect.

Walker weighed 193 pounds and by the impact of the car he was thrown above the windshield. After the appellant hit appellee and Walker, he stopped the car in about seventy-five feet. Appellant did not sound any alarm before he struck the appellee.

Appellee was twenty years of age and in perfect health. She did general farm and domestic work. Since her injury she has not had strength and health and could not do work as before. When in health she had strength above the ordinary and made as...