Coca Cola Bottling Co. v. Shipp

• Decision Date: 23 May 1927
• Docket Number: 7
• Citation: 297 S.W. 856,174 Ark. 130
• Parties: COCA COLA BOTTLING COMPANY v. SHIPP
• Court: Arkansas Supreme Court

297 S.W. 856

COCA COLA BOTTLING COMPANY v. SHIPP

174 Ark. 130

No. 7

Supreme Court of Arkansas

May 23, 1927

Appeal from Monroe Circuit Court; George W. Clark, Judge; reversed.

Judgment reversed, and cause dismissed. Case reversed and remanded.

Roscoe R. Lynn and June P. Wooten, for appellant.

Bogle & Sharp, Carl E. Bailey and Sam T. & Tom Poe, for appellee.

SMITH J. MEHAFFY, J. WOOD, SMITH and HUMPHREYS, JJ., dissent.

OPINION

SMITH, J.

Appellee is a traveling salesman, selling oil and gas in the vicinity of Little Rock. He took orders for his wares, and in some cases made deliveries, in doing which he drove a Ford roadster. On August 18, 1925, he had been to Carlisle and Lonoke, in which last named town he arrived about 10:30 P. M., where he remained, eating supper until about midnight, after which he started to Little Rock, his home and headquarters. In doing this it was necessary for him to drive through the city of North Little Rock, where he arrived shortly after 1 A. M. He reached East Third Street in that city, which is shown to be one of the city's largely used streets, especially at that season of the year, when many persons went to the bathing beach at Willow Beach, and who, in returning, drove down that street. At the intersection of East Third and Olive Streets, in the city of North Little Rock, there is a large concrete post, on the top of which a red light was burning, and on the northeast corner of Third Street was an electric light, set upon an arm which extended over the corner of the streets. There is a conflict in the testimony as to the size of the light and the area it illuminated, but the undisputed testimony shows that it was a part of the city's lighting system.

About 8 P. M. on August 18, 1925, the driver of a truck belonging to the Coca-Cola Bottling Company found out his truck was disabled so that the truck could not proceed to the garage where it was kept. He called the office of that company, and was advised that the mechanic who attended to such repairs was not at hand, and the driver of the truck was directed to park the car where it was, if he was unable to make the necessary repairs which would enable him to reach his destination. The truck was equipped with a large wooden body, which extended out from the rear wheels about a foot and a-half on each side. The truck was used for transporting the products of appellant from its plant in Little Rock to near-by towns, and had been so used on the day in question, and was filled to its capacity with cases containing empty bottles, and at the rear end of the truck a large barrel was piled on top of the load. The driver was unable to make the necessary repairs of the truck, so he parked it near the northeast corner of the intersection of East Third and Olive streets, headed west, which was the direction appellee was driving on Third Street. The truck was not placed against the curb, and the rear end extended further into the street than the front. The testimony shows that the truck was so parked as to interfere with the traffic, and this interference was increased by the presence of the traffic post in the center of the two intersecting streets. There were no lights of any kind on either end of the truck.

Appellee testified that he had been driving about twenty-five miles an hour, but, as he approached the intersection of East Third and Olive streets, he slowed down to about twenty miles per hour on account of the approach of another automobile from the opposite direction. This car had bright lights, which blinded appellee to some extent as it came nearer, and, as the approaching car was about to pass, appellee turned his car slightly to the right, and ran into the truck, which he did not see until he turned. Appellee immediately applied his brakes, but was unable to avoid the collision, and a terrific impact occurred. So great was the force of the collision that the car appellee was driving was driven under the rear of the truck, and it was necessary to pry them apart. The impact smashed the radiator, the windshield, and the steering wheel of appellee's car, and inflicted upon him a very serious injury. The force of the collision was so great that a man sleeping in a house on the opposite corner was awakened from his sleep.

Appellee recovered a judgment to compensate his injuries, and this appeal is from that judgment.

Error is assigned in giving and in refusing to give certain instructions; but we find it unnecessary to discuss this assignment of error. The instructions given required the jury to find, before returning a verdict for the plaintiff, that the defendant was negligent. This feature of the case presents but little difficulty, as we think the testimony fully supports that finding. The jury was also instructed that, if plaintiff was guilty of negligence contributing to his injury, he could not recover, and, as there was a verdict in his favor, we assume that the jury found that appellee was not guilty of contributory negligence. The correctness of this finding presents the controlling and the difficult question in the case.

We have concluded, after a careful consideration of the testimony in the case and a review of many authorities applicable thereto, that plaintiff was guilty of contributory negligence, and that the trial court should have so instructed the jury. Under this view it is unnecessary to determine whether error was committed in giving or in refusing to give instructions as requested.

A leading case on the subject is that of Lauson v. Fond du Lac, 123 N.W. 629, 141 Wis. 57, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30, which was decided by the Supreme Court of Wisconsin in 1909. This case is annotated in 25 L.R.A. (N.S.) 40. The facts there were that a car was being driven at a speed of eight miles per hour on a dark, rainy night, and the driver could not see objects more than ten or twelve feet ahead, and could not bring his car to a stop within less than fifteen or twenty feet. The driver ran into a hole which had been negligently left in the road. The trial court submitted the question of negligence and of contributory negligence to the jury, and there was a verdict and judgment in plaintiff's favor. This judgment was reversed and the cause dismissed, for the reason that the driver of the car was guilty of contributory negligence. In so holding it was pointed out that self-propelling machines of great weight and high power had come into general use, which, when driven at a reckless speed, are a constant menace to their occupants and to the traveling public, which has not and cannot abdicate its right to use the streets and roads of city and country. It was there said that the automobile had created a new peril in the use of the public highways, and one which is greatly enhanced by the recklessness of drivers who propel them with the speed of trains on well-defined tracks, and that some rule consonant with the public safety and not unduly harsh or restrictive upon the users of motor cars must be evolved to meet conditions which the automobile had created. In declaring such a rule the court said:

"It seems to us, and we decide, that the driver of an automobile, circumstanced as was the driver of the car in which the plaintiff was riding, and operating it under such conditions as he operated his machine on the night of the accident, is not exercising ordinary care if he is driving the car at such a rate of speed that he cannot bring it to a standstill within the distance that he can plainly see objects or obstructions ahead of him. If his light be such that he can see objects for only a distance of 10 feet, then he should so regulate his speed as to be able to stop his machine within that distance; and, if he fails to do so, and an accident results from such failure, no recovery can be had. This, it seems to us, is the minimum degree of care that should be required. Circumstances might arise where it would be reckless to drive at such a rate of speed, or even at a rate approximating it. We do not ground this rule on the fact that we have a statute requiring automobiles to carry reasonably bright lights while being operated during the hours of darkness. Independent of any statute, and considering the character of these machines, we hold it would be negligent operation to run them without sufficient lights to enable the driver to see objects ahead of him in time to avoid them. Such is substantially the rule adopted by the Supreme Court of Connecticut in a well-considered case in reference to the running of a street car."

This case has been frequently cited and approved, and, while there are cases which do not state the rule so broadly, it announces what we conceive to be the proper rule. We hold therefore that, if one drives his car at night at a speed so great that he cannot stop within the range of his vision, the lights are of but little value, and if, while so driving, he has a collision, he is negligent. He cannot say that he depended on his lights when the rays thereof do not project a sufficient distance to enable him to stop after discovering the peril. The excessive speed neutralizes the protection which the lights would otherwise afford where one drives so fast that he cannot stop after the lights have made the obstruction visible. Due care requires one to take into account the distance his lights project and forbids driving at a speed so great that a stop cannot be made within the distance one can discover a peril to himself or to another. If one drives at a greater speed than this, he is taking a chance which prudence would avoid, and if, while taking this chance, his negligence coincides with the negligence of another and produces an injury, the negligent party cannot recover, because his own...