Dardanelle Pontoon Bridge & Turnpike Company v. Croom

Decision Date30 May 1910
Citation129 S.W. 280,95 Ark. 284
PartiesDARDANELLE PONTOON BRIDGE & TURNPIKE COMPANY v. CROOM
CourtArkansas Supreme Court

Appeal from Yell Circuit Court, Dardanelle District; Hugh Basham Judge; affirmed.

Judgment affirmed.

H. M Jacoway and Sellers & Sellers, for appellant.

There is no way of keeping counsel within bounds but by setting aside verdicts. 62 Ark. 126; 22 Ia. 253; 58 Ia. 473; 61 Ark 130; 71 Ark. 415; 74 Ark. 256; 70 Ark. 306. Counsel has no right to assail an unimpeached witness. 77 Ark. 238; 65 Ark. 625; 75 Ark. 577; 72 Ark. 468; 63 Ark. 174; 74 Ark. 210; 72 Ark. 139; 76 Ark. 276; 65 Ark. 389; 70 Ark. 179; 76 Ark. 370; 89 Ark. 58; 87 Ark. 461; Id. 515; 81 Ark. 25; Id. 231; 80 Ark. 23. There are extraordinary incidents, out of the usual course of travel, for which no provision is required to be made. 61 Ark. 149; 77 N.Y. 83; 125 Pa. 24; 81 Pa. 44; 145 Pa. 220; 109 N.Y. 134; Whart. on Neg., §§ 103, 104; 68 Md. 389.

Bullock & Davis, for appellee.

Witness was qualified from years of experience to testify as an expert. 57 Ark. 572; 23 Ark. 200. A resident on a stream may state that a dam has been raised too high to be safe. 17 Conn. 249. The instructions were correct. 61 Ark. 141; 138 Ill. 465.

OPINION

FRAUENTHAL, J.

This was an action to recover the value of a team of mules and a wagon which fell from defendant's bridge, and were lost. It was alleged in the complaint that the loss was due to the defendant's negligence in failing "to have a safe and sufficient guard rail properly braced and strong enough, to insure safe passage over said bridge, and to prevent frightened teams from breaking through into said river." The defendant owned and operated a bridge across the Arkansas River near the town of Dardanelle, and charged and collected fare for the crossing of persons and property over it. The plaintiff had driven his mules and loaded wagon upon the bridge, and was crossing over same when the mules, either from fright or other cause, backed the wagon against the railing of the bridge, which broke and gave way, and the mules and wagon were precipitated into the river; the mules were drowned and the wagon lost.

The testimony on the part of the plaintiff tended to prove that the bridge was built of boats, and was what is known as a "pontoon" bridge. Along its sides the defendant had built a railing or barrier. This railing was composed of upright posts upon which was fastened a plank or streamer. The posts were made of pine, and were fastened to the bottom of the boats with bolts. The testimony on behalf of the plaintiff tended to prove that the posts were not built of strong wood, that the timbers in the railing were light and frail, and that the posts and railing were not braced. That because the posts were not braced the railing was not substantial and not strong enough to withstand the weight of a wagon that might ordinarily be expected to be pressed against it. And the testimony tended further to prove that if the railing had been built of heavier and sounder timber, and the posts properly braced, it would have withstood such pressure. And we are of opinion that there was some evidence adduced in the case which was sufficient to warrant the jury in finding that the railings were not constructed and maintained in such a proper and substantial manner as was necessary to secure the safety of teams that ordinarily crossed the bridge, and which might press against the railings with such force that might be, in the exercise of due care and caution, expected and foreseen; that the loss was due to the insecure and unsubstantial manner in which the railing was constructed and maintained; and that the plaintiff was at the time in the exercise of due care.

At the request of the plaintiff the court gave the following instruction:

"1. If you find that the defendant owned and operated a bridge across the Arkansas River, for the transportation of freight and passengers for toll, it was bound to use reasonable skill and diligence in providing against the ordinary dangers of travel, and to provide and maintain a reasonably safe bridge; and if guard rails and banisters be reasonably necessary for that purpose and practicable, it was bound to construct and maintain them in the places needed and of sufficient strength to be reasonably safe; and if you find that the defendant failed to so construct and maintain or keep in repair the said bridge by reason of which the injury complained of occurred you will find for the plaintiff."

At the request of the defendant the court gave among other instructions the following:

"3. Defendant is not an insurer of the safety of property carried over its bridge; nor is it required to keep guard rails of such strength that they will not give way or break under any circumstances, or resist extraordinary pressure. It is only required to use ordinary care to keep its guard rails in a reasonably safe condition, which means a condition of safety under ordinary circumstances."

"5. Before you would be justified in finding for the plaintiff, you would have to find from the evidence that at the time of the accident the bridge, by reason of the defective guard rail, was insufficient to furnish protection to teams under such conditions and circumstances as were likely to occur on said bridge; and you would have to find further that such defective condition existed and was caused by defendant's failure to use ordinary care."

"6. Before you would be justified in finding for the plaintiff, on account of the defective guard rail as alleged in the complaint, the proof would have to show that, in order to furnish protection to wagons and teams crossing said bridge under the usual and ordinary circumstances, it was necessary to have guard rails of greater strength and sufficiency than the ones shown to have given away; and further that the failure to have rails of greater strength was caused by the negligent failure of defendant to use ordinary care."

The jury returned a verdict in favor of the plaintiff, and the defendant has appealed to this court.

It is contended by counsel for defendant that the evidence adduced in the trial of this case was not sufficient to impose a liability upon it, and was not sufficient to sustain the verdict of the jury. The determination of that question depends upon the duty which the defendant owed to the plaintiff as one of the traveling public over its bridge and the manner in which defendant has performed that duty. The defendant was the proprietor of a bridge, and made a charge against the public for crossing same. It thereby became its duty to exercise reasonable and ordinary care and prudence in the construction and maintenance of its bridge for the safety and protection of those using it and to make reasonable provisions to prevent injuries from causes which are likely to arise in the ordinary use of the bridge.

A toll bridge should be so constructed that it shall be safe for travel, and the degree of the strength of the structure must be determined by the use which is fairly to be expected to be made of it. It should be constructed in a manner strong enough to sustain those weights and to protect from injury that character of property which may fairly be expected to cross over it. While not an insurer of the person or property of its customer, the proprietor of a toll bridge is bound to exercise care to see that it is reasonably safe and secure for the purpose for which it was erected and is used. The liability of the proprietor of the bridge is founded upon negligence; and his negligence arises from the failure to exercise the necessary care in seeing that the bridge is safely constructed and maintained. If guard rails are reasonably necessary for the safety of travelers and their property in crossing the bridge, then the owner would be liable for an injury which was caused by a failure to construct and maintain such railing or barrier. In 2 Dillon on Municipal Corporations, § 1005, it is said: "Where a rail or barrier is reasonably necessary for the security of travelers on the road which from its nature would otherwise be unsafe and the erection would have prevented the injury, it is actionable negligence not to construct and maintain such guard or barrier." Little Rock Traction & Elec. Co. v. Dunlap, 68 Ark. 291, 57 S.W. 938; 5 Cyc. 1101; Eads v. Marshall, 29 S.W. 170.

The guard rail should be effective for the purpose for which it is erected, and should therefore be constructed and maintained in such a reasonably strong and substantial manner as to withstand the ordinary weights and forces that may be likely expected to be pressed against it. This is necessary in order to put the railing in a safe condition for the travel in the ordinary manner over such bridge. Whether or not the railing is in such condition is a question to be determined by the jury under the peculiar circumstances of each case. 2 Dillon on Municipal Corporations, § 1019; Wharton on Negligence (2 ed.), § 103.

In the case of Walrod v. Webster Co., 110 Iowa 349, 47 L.R.A. 480, it appears that the horses became...

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