Carter v. Brown

• Decision Date: 21 October 1918
• Docket Number: 177
• Citation: 206 S.W. 71,136 Ark. 23
• Parties: CARTER v. BROWN
• Court: Arkansas Supreme Court

206 S.W. 71

136 Ark. 23

CARTER v. BROWN

No. 177

Supreme Court of Arkansas

October 21, 1918

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

Judgment reversed and cause remanded.

Rhoton & Helm, for appellant.

1. There was testimony showing negligence and it was error to instruct a verdict. 89 Ark. 522, 524; Ib. 372. There was no evidence that plaintiff in any way contributed to her injuries. She had a right to sue either or both joint feasors. 61 Ark. 381; Bishop on Non-Cont. Law, par. 18; Wharton, Law of Negl. § 395; 183 S.W. 467.

2. Prima facie negligence on the part of the driver of defendant's automobile was established. Acts 1911, No 134; 2 R. C. L. 1184; 96 A. 163.

3. Where one is riding as a guest of another and is injured by the defendant and contributory negligence is alleged, the negligence of defendant is not irrefutable to the injured party where he or she has no authority or control over the person with whom riding. 72 Ark. 572; 75 Id. 30; 102 Id. 355; 112 Id. 421; 123 Id. 557; 126 Id. 337. See also 1 Thompson on Negl. § 502; 1 Sh. & Redf. Neg. § 66; 161 N.W. 715-717; 6 Rob. (N. Y.) 82; 47 N.Y.S. 454; 45 Id. 124; 164 P 385-386; 145 N.W. 923; 51 F. 177; 16 L.R.A. 800; 8 L.R.A. (N. S.) 597; 36 S.E. 750; 8 L.R.A. (N. S.) 618; L.R.A. 1917 A. 543; 96 A. 163.

4. The court erred in giving defendant's instruction No. 3. 68 Ark. 444; 102 Id. 137; 96 A. 54; 155 S.W. 439. See also L.R.A. 1915 B. 953; 16 L.R.A. (N. S.) 424; 8 Id. 597; 69 So. 626.

5. The following cases are directly in point on the law and facts here. 165 N.W. 435; 198 S.W. 1117; 91 S.E. 632; 164 P. 120; 163 N.W. 824; 164 Id. 447; 165 Id. 30; 101 A. 45; 102 Id. 283; 165 P. 1005; 168 Id. 335; 198 S.W. 150; 163 N.W. 298; L.R.A. 1917 F. 253; 89 S.E. 753 and many others.

6. Each of plaintiff's instructions should have been given as they correctly state the law. 123 Ark. 548-557; 102 Id. 534; 118 Id. 515; 127 Ark. 332. See also 116 U.S. 366; 118 Ark. 515; 127 Id. 332; Acts 1911, p. 101, etc.

Mehaffy, Reid, Donham & Mehaffy, for appellee.

1. Brown was not guilty of negligence. 1 Thompson on Negl. 4. It was the duty of both drivers to drive to the right.

2. One operating an automobile has the right to act upon the assumption that every one he meets will exercise ordinary care and obey the law. 2 R. C. L.

3. Even if guilty of negligence in driving rapidly, this was not the proximate cause of the injury.

4. The doctrine of imputed negligence applies. 1 Thompson on Negl. § 506; 8 Id. 84; Sh. & Redf. on Negl. § 65 A.; 75 Ark. 30; 102 Id. 355. Plaintiff knew they were driving on the wrong side of the road, going around a curve; she knew it was dangerous and that they were violating the law, and yet she made no objections and was guilty of negligence. 3 Elliott on Railroads 1174; 114 Pa. 643; 8 A. 379; 6 L.R.A. 143; 32 A. 967; 27 N.E. 339; 193 Ill.App. 387; 112 N.E. 251; 24 Id. 449; 44 F. 574; 17 N.E. 202; 43 Id. 667; 18 S.W. 2; 11 Id. 127; 63 N.E. 315; 64 P. 624; 76 S.W. 973; 78 Id. 284; 200 Id. 123. A verdict was properly directed.

OPINION

WOOD, J.

On Sunday afternoon of December 24, 1916, Jeff Brown, a planter living at Woodson, Arkansas, left his home about one o'clock for Little Rock. He went in his car, a six-cylinder Buick. In the car with him were his chauffeur, F. L. Oats, his wife and daughter, and another lady. Brown and his wife and daughter were on the back seat and Oats, who was driving the car, and Mrs. Annie Agnes were on the front seat. On the same day Gardner Oliphint, a man by the name of Jennings, a Miss Carter and a Miss Wiley left Little Rock in a Ford car for a drive, for mutual pleasure, on the road leading from Little Rock to Pine Bluff. The car in which Oliphint and his companions were riding was being driven by Oliphint. Brown's car, on the road from his home to Little Rock, was thus going north, while Oliphint's car was going south.

A collision of these cars occurred in the village of Sweet Home which caused personal injuries to Miss Carter, and she instituted this action against Brown, alleging that he "negligently, recklessly, carelessly, wantonly, willfully, and maliciously, without sounding any horn or giving any signal of warning of his approach, drove his automobile into and upon the automobile in which plaintiff was riding;" that his car was a large Buick, and was being driven at the rate of about 35 or 40 miles an hour; that, without heeding the signals of warning which were given him of the approach of the car in which the plaintiff was riding, Brown approached a sharp curve at a high and excessive rate of speed, causing a collision resulting in the injuries to plaintiff. She asked for punitive damages in the sum of $ 5,000, and compensatory damages in the sum of $ 25,000.

The defendant, Brown, answered denying specifically all the allegations of the complaint as to negligence; he averred that the parties in the car in which plaintiff was riding were guilty of "negligence, carelessness and wrongful conduct," which was the sole cause of the collision and any injuries that the plaintiff may have sustained; that the negligence of the driver of the car in which the plaintiff was riding consisted in going at an unlawful rate of speed and in being on the wrong side of the road.

Witness Jennings, on behalf of the plaintiff, testified that Oliphint before the evening of the accident was not acquainted with Miss Wiley and Miss Carter; that he arranged to introduce them to Oliphint, and invited them to join him and Oliphint on a pleasure drive. Oliphint arranged to get the machine. The material portion of this witness' testimony with reference to the issues of negligence and contributory negligence, is substantially as follows: "Defendant's car was about 30 feet from the car in which plaintiff was riding (which for convenience we will hereafter designate as Oliphint's car) when witness first discovered it. It was coming at the rate of about 25 or 30 miles per hour." With reference to an automobile going east preparatory to turning south and one coming north preparatory to turning west, the view there was entirely obstructed by a store building. Oliphint sounded his horn just before he turned the corner to start south to the right, there where the accident occurred. He was running his car at the time about 5 or 6 miles an hour. Defendant, Brown, was on the inside of the road to his left, pretty close to the store; they were pretty nearly facing each other. They were facing each other but witness didn't remember how much to one side one or the other was, except that Oliphint's car was well in the right where they collided. Oliphint was naturally trying to avoid a collision. Witness was asked if Oliphint "didn't try to turn his car out to the left and move it out quite a distance," and answered, "Well, I kind o' believe he did. I am not sure but it would naturally be that way. He was trying to avoid a collision. If Mr. Brown was coming on the right hand side, he was naturally turning to the left in order to avoid a collision. He hadn't been able to turn it very far until Brown struck him. It occurred well into the right of the curve. Brown knocked Oliphint's car out to the outside of the road by reason of the difference in the size of the cars and the weight."

Oliphint testified concerning the collision as follows: "The collision occurred at the store there at Sweet Home as you turn to go south to Pine Bluff. I was making the curve, the turn to go south, and I saw Mr. Brown's car 25 or 30 feet in front of me coming right at me from the south. I threw both my feet down just as tight as I could, and my brakes went on, and I threw my car that way to keep him from hitting me square in the face, and the collision occurred. Going toward Pine Bluff, my right was toward the west and south. I was on the inside of the right hand side of the road, going right around the road there; just in the right in the road as the curve is made. When I discovered his car coming at me, I immediately threw both of my feet down and threw my steering gear that way which threw my car out a little bit to the side to the east, to my left the way I was going, to sort of ward off the blow and to keep him from hitting me right square. The collision occurred about the middle of the road, I would say, or a little further to the east of the middle; something to the left of the center of the street, the way I was going south, or to the right of the center of the street the way he was coming north." Witness was going between 5 and 6 miles an hour as he was approaching the curve with a view of turning to the south. He sounded his buzz. Brown's car was running, when witness first saw it, 15 or 20 miles an hour; coming mighty fast right into witness. There was no gong sounded by his car or by the one who was driving his car. There was an obstruction there by the way the store building is constructed, so that one cannot see going around that curve until he gets into the curve of the road. A plat was introduced and the witness testified to the location of the collision, pointing out on the plat where the same occurred showing that the collision occurred right in the curve immediately east of the northeast corner of the store. Oliphint demonstrated on the plat the respective locations of his and Brown's car and showed how the collision occurred. He testified in this connection: "I was hugging the inside like I should right there, following the tracks that are made there by automobiles." Witness explained why he turned his car to the left at the time of the collision as follows: "He was coming at me about 15 or 18 miles an hour and I threw my car to keep him from hitting me square in the face and so he would hit me sort of side...