Bugh v. Webb
Decision Date | 19 October 1959 |
Docket Number | No. 5-1902,5-1902 |
Citation | 231 Ark. 27,328 S.W.2d 379 |
Parties | , 84 A.L.R.2d 444 Joe BUGH and Clarence E. Bugh, Appellants, v. L. W. WEBB, Individually and as Father and Next Friend of Charles Webb, a Minor, Appellees. |
Court | Arkansas Supreme Court |
Bernard Whetstone and Joe B. Hurley, El Dorado, for appellants.
L. B. Smead, Camden, W. R. McHaney, Smackover, Melvin E. Mayfield, El Dorado, for appellees.
This litigation arises out of a 'drag-racing' incident. The principal question to be resolved is: Does a guest assume the risk of injury when he consents to ride with one who engages in drag racing? Most of the material background facts leading up to the issue here involved are not in dispute.
On Saturday night, September 14, 1957, the appellee, Charles Webb (a minor), was riding in a Dodge car being driven by appellant, Joe Bugh (a minor), when Joe engaged in an automobile race, commonly known as a 'drag race', with a Ford car being driven by one Jerry Smith on Highway No. 7 about one and one-fourth miles north of Smackover. Incident to the race a pick-up truck was struck by the Ford car and instantly thereafter by the Dodge car, resulting in damage to the vehicles involved and in injuries to Charles. Charles' father, individually and as next friend of Charles, brought suit against Joe and his father to recover damages.
Upon a trial the jury returned a verdict in favor of the complainants and from the judgment entered thereon, the Bughs prosecute this appeal. For a reversal appellants rely on one ground only, i. e.: that the trial court erred in refusing to instruct a verdict in their favor. After much deliberation we reach the conclusion that the trial court erred in refusing to grant appellants' motion because, we think, appellees' own testimony shows that Charles assumed the risk.
At the close of plaintiffs' testimony appellant moved for a directed verdict. This motion was based on several different grounds which included the guest statute, joint enterprise and assumption of risk. The motion was overruled and exceptions duly saved. When the trial judge overruled appellants' motion for a directed verdict he stated that he thought the testimony of Charles Webb was sufficient to make a jury question. We, likewise, think that the issue depends almost entirely upon the testimony of Charles Webb and we shall set out that testimony in some detail, but first we refer briefly to the testimony of appellees' other witnesses.
Wylie Parham, a State Policeman, testified that the collision occurred at approximately 7:45 p.m., Saturday, September 14, 1957, and that he appeared on the scene approximately thirty minutes later; that Highway No. 7 on which the collision occurred 'is a very heavy traveled highway' and that 'the traffic at all times is heavier on Saturday nights than at other times'. Clifford Brewer testified that he lives on the outskirts of Smackover and that he heard the collision and that it happened on the highway near a drive-in. Ivy Fowler, who was driving the pick-up truck, stated that he was in the process of making a turn from the highway when he 'heard a loud, roaring noise' and saw a car coming trying to get around him; that the Ford car (driven by Smith) hit his left front fender and almost simultaneously another car hit the pick-up truck from behind and knocked him two hundred feet across the road into a ditch, and that the second car that hit him was a Dodge car. Curtis Butterfield testified that he knew Charles Webb and that he saw him at a dance a short while before the collision occurred. The father of Charles Webb and the father of Joe Bugh each testified but gave no testimony material to the issue here to be decided.
The uncontradicted testimony shows that this portion of Highway No. 7 where the drag racing took place was a heavily traveled highway and particularly so on Saturday nights. This was testified to by the highway policeman and was admitted by Charles Webb. The testimony shows beyond question that Charles Webb had engaged in drag racing on previous occasions not only with Joe Bugh but with the other boys involved on this occasion. This is shown by his own testimony:
Witness Charles Webb also stated that he remembered dragging one time with Jerry Smith out on what was called 'Nigger Hill' about two miles south of Smackover.
'
'
Charles Webb's testimony likewise shows that he knew they were going to drag race on this particular occasion. In speaking of Jerry Smith who was driving the Ford car the witness stated:
...
To continue reading
Request your trial-
Kopischke v. First Continental Corp.
...which adhere to the position that comparative negligence and voluntary assumption of the risk can be harmonized. See Bugh v. Webb, 231 Ark. 27, 328 S.W.2d 379 (1959); Harris v. Hercules, Inc., 328 F.Supp. 360 "Appellant directs us to a Florida case, Dorta v. Blackburn, Fla.App., 302 So.2d 4......
-
Larson Mach., Inc. v. Wallace
...that caused the power from the tractor to turn the power take-off shaft. Hudgins v. Maze, 246 Ark. 21, 437 S.W.2d 467; Bugh v. Webb, 231 Ark. 27, 328 S.W.2d 379; Haynes Drilling Corp. v. Smith, supra; McDonald v. Hickman, 252 Ark. 300, 478 S.W.2d 753. Of course, Arnold Wallace could be said......
-
Duffy v. Midlothian Country Club
...and volition could be proven. (See, e.g., Kennedy v. Providence Hockey Club, Inc. (1977), 119 R.I. 70, 376 A.2d 329; Bugh v. Webb (1959), 231 Ark. 27, 328 S.W.2d 379.) Secondary assumption of risk has been viewed as functionally similar to contributory negligence. (See generally, Kionka, Im......
-
King v. Barrett
...she entered the car she was taking a ride with a reckless driver but chose to do so to be with him or for the thrill. Cf. Bugh v. Webb, 231 Ark. 27, 328 S.W.2d 379 (drag racing on previous The only evidence of the half-mile ride itself comes from plaintiff's lips, and defendant is obliged t......