Coca-Cola Bottling Company of Blytheville v. Doud
| Decision Date | 12 November 1934 |
| Docket Number | 4-3578 |
| Citation | 76 S.W.2d 87,189 Ark. 986 |
| Parties | COCA-COLA BOTTLING COMPANY OF BLYTHEVILLE v. DOUD |
| Court | Arkansas Supreme Court |
Appeal from Mississippi Circuit Court, Chickasawba District; G. E Keck, Judge; affirmed.
Judgment affirmed.
Bruce Ivy and Cecil Shane, for appellants.
Luther H. Graves and Harrison, Smith & Taylor, for appellees.
The scene of the occurrence out of which this litigation grows is a village called Joiner, populated by three hundred and six persons, which straggles on either side of Highway No. 61 and a railway. Running at an angle across this highway is a gravel road, and at the intersection there is a large triangular space approximately 100 feet at its widest point. The highway runs through the village from northeast to southwest.
At about 3:30 o'clock on the afternoon of April 28, 1933, an automobile, driven by Miss Ruth Albrecht in which Mrs. Helena A. Doud was riding as a guest, in passing a truck operated by an employee of the Coca-Cola Bottling Company, was overturned. Both ladies were very seriously injured. To recover damages for these injuries, each brought suit against the company on the theory that the negligent operation of the truck by its drive, Hendrix, was the proximate cause of the accident and the resulting injuries. William P. Doud and O. F. Albrecht also brought separate suits against the company, the first named to recover for doctor's bills and other expenses incurred by him in the treatment of Mrs. Doud, his wife, and the other for expenses incurred in the treatment of Miss Albrecht, his daughter.
The suits were defended on the theory that the accident occurred at the intersection of streets in the business district of the town which Hendrix, driving the truck of the company, was in, having entered the same in a prudent manner giving the proper signals and driving with due caution with regard to the traffic and use of the way; that the accident was the result of the negligence of the driver of the automobile that it was being driven recklessly in the business district at an excessive rate of speed, rendering the driver unable to keep the car under control. The further defense was interposed that, if the driver of the truck was negligent, the driver of the automobile was also negligent by reason of her rapid and careless driving, and that her guest, Mrs. Doud, by acquiescing in the manner of such driving, was also guilty of negligence; that the negligence of the driver of the automobile and her guest directly contributed to the happening of their injuries.
The cases were consolidated for the purposes of trial, which trial resulted in a verdict and judgment in favor of each of the plaintiffs. On appeal no exceptions are taken as to the amount of the judgments.
It is first contended that the trial court erred in refusing to direct a verdict on the motion of the defendants, the contention being that the evidence failed to establish the negligence of the driver of the truck, and that, under the facts and circumstances proved, the casualty to the automobile was occasioned solely by the reckless driving of the same and the inattention of its occupants.
There is some conflict in the evidence relative to the movement of the truck immediately preceding the accident and a sharp and decided conflict in the evidence relative to the speed at which the automobile was being driven and the attention of its driver to the conditions of the road ahead.
On the west side of the highway north of the intersection where the gravel road crosses at an angle is a store occupied by Squire Holt. It was in front of this store slightly to the south on the east side of the highway that the automobile overturned. Just before the automobile appeared, being driven from the northeast to the southwest, the truck of the appellant company was parked parallel with the highway in a space between the west curb of the highway and the front of Holt's store, approximately in front of the middle door of the store. It appears that the truck was headed toward the south when parked. Hendrix testified that, when he started to leave Mr. Holt's place of business, he passed around the south end and in front of the truck, speaking to some persons as he did so; that he entered the truck from the side next to the highway; that he looked in each direction and saw no one approaching; that as he put his truck in movement he signaled with his left arm his intention to turn into the highway; that about the time he got the truck moving he heard a horn and stopped instantly; that he then observed Miss Albrecht's car about thirty or forty feet to the north going off the pavement so fast as to apparently be from under control. Witness stated that where the movement of his truck was being made was a very dangerous place, with which he was familiar; that the front of his truck at the time the Albrecht car was overturned was at about the center of the highway and that the automobile missed him about fifteen feet.
Hendrix's testimony was corroborated by that of some witnesses regarding the rate of speed at which Miss Albrecht's car was being driven, the estimated speed being from forty-five to fifty miles per hour.
The testimony of witnesses for the appellees tended to show that Miss Albrecht and Mrs. Doud were traveling at a moderate rate of speed entering the village from the north. Miss Albrecht stated that, before reaching the village, she was traveling at about forty miles an hour, but slowed down on reaching it. She was corroborated by witnesses who stated that she was traveling at from thirty to thirty-five miles an hour after entering the village and that she slowed down as she approached Holt's store. The testimony further tends to show that, as Miss Albrecht was proceeding in this manner, the driver of the truck without warning made a sudden left turn directly into the highway and directly in front of the approaching automobile, which was sounding its horn.
In describing the situation thus presented, Miss Albrecht said:
There was testimony corroborating Miss Albrecht's statement to the effect that right after the occurrence Hendrix, the driver of the truck, stated that he guessed he was at fault because he pulled out on the highway in front of them, and also testimony tending to show he was engaged in conversation with his friends as he entered the car, "gabbing" as one expressed. On this testimony the trial court submitted to the jury the question of the negligence of the truck driver in the manner of the movement of his vehicle and also the question of the contributory negligence of Miss Albrecht and her guest, Mrs. Doud. We think the testimony abundantly justifies the submission of those questions to the jury. The court properly refused to instruct a verdict in favor of the defendants.
Exceptions were saved to the giving of instructions Nos. 1 and 2 for the plaintiff. These are identical instructions with the exception that No. 1 submits to the jury the question, in Mrs. Doud's case, as to whether or not Hendrix drove the truck in question upon the highway in front of the oncoming car, and, if so, whether or not it was negligence, and, if so, whether this caused or contributed to Mrs. Doud's injury. Instruction No. 2 presented the same question as it related to the case of Miss Albrecht. One of the objections urged was that if the jury should find the facts in the affirmative, that such were negligence and the proximate cause of the injuries, "then your verdict will be for the plaintiffs." The contention is that the expression, "then your verdict will be for the plaintiffs," offends against the rule stated in Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S.W.2d 676, and other cases cited, which is that an instruction ending with the stereotyped "find for the plaintiff" is incomplete in that it ignores and leaves out the question of the defense of contributory negligence. These instructions, however, do not so conclude, but end with the phrase, "unless you should find for the defendants under other instructions given you." This, with the further instruction given by the court: "You are not to take any one instruction given you as the whole law of the case, but take them all together as such," differentiates these instructions from those criticized in the cases cited by the appellants.
It also appears that the appellants made a specific objection...
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