Brotherton v. Walden
| Decision Date | 20 April 1942 |
| Docket Number | 4-6703 |
| Citation | 161 S.W.2d 391,204 Ark. 92 |
| Parties | BROTHERTON v. WALDEN |
| Court | Arkansas Supreme Court |
Appeal from Saline Circuit Court; T. E. Toler, Judge; affirmed as to Mrs. Brotherton; reversed as to Will Brotherton.
Judgment reversed and cause dismissed in part and affirmed in part.
W R. Donham, for appellant.
Kenneth C. Coffelt and Wm. J. Kirby, for appellees.
Appellee, who sued by her father as next friend, recovered a substantial judgment, which is not complained of as being excessive, against Mr. and Mrs. Brotherton, who are husband and wife, to compensate a serious injury which she sustained as the result of a collision with an automobile in which Mrs Brotherton was driving alone.
The accident occurred about four o'clock in the afternoon of April 23, 1940. Appellee, who is 14 years old, was returning home from school with three other girls. All were walking north on a highway which leads to the railroad station, but which forks before reaching the station. The right-hand road turns east towards Little Rock, and the left- hand road runs northwest across the railroad tracks.
The testimony on appellee's behalf is to the effect that the girls were walking on the east side of the highway, and Mrs. Brotherton was driving on the same side of the road in the same direction the girls were walking. Appellee had to cross the highway to reach her home. When the girls came to the point where the road divided, appellee left the path on the right-hand side of the road, and walked to the west across the highway, and the testimony is conflicting as to whether she ran or walked into the car or was struck by it. The collision occurred on the west or left-hand side of the road. Mrs. Brotherton was driving about 20 miles per hour. She testified that as she approached the girls she blew the horn of her car at a distance of about 100 feet, and that as appellee started across the road she again blew the horn at a distance of about 20 feet from appellee, and when appellee proceeded to cross the road she turned her car to the left to avoid striking appellee, but appellee walked into the car and was struck by the right rear fender. Mrs. Brotherton applied her brakes when the collision occurred and the car was stopped within 20 feet after the collision. Mrs. Brotherton picked appellee up and carried her to a hospital. There was nothing to prevent appellee from seeing the approaching car had she looked.
The testimony on appellee's behalf is to the further effect that the highway curves at the point where she started across, and that she glanced back down the road in the direction from which the car was approaching, but she did not see it. She walked diagonally or obliquely across the road, and was within a step or two of the opposite side when she was struck. No horn was blown.
Appellants insist, first, that in no event should a judgment have been rendered against Mr. Brotherton; and that contention is not questioned, and must be sustained. It was held in the case of Bourland v. Baker, 141 Ark. 280, 216 S.W. 707, 20 A. L. R. 525, (to quote a headnote) that "The common-law rule that the husband is liable for the wife's torts had been abrogated by the married woman's act (Acts 1915, p. 684)." See, also, Johnson v. Newman, 168 Ark. 836, 271 S.W. 705.
It is further insisted by appellants that under the above testimony, viewed, as it must be, in the light most favorable to appellee, it was error on the part of the court not to direct a verdict in appellants' favor, for the reasons (a) that no negligence on the part of Mrs. Brotherton was shown, and (b) t...
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