Daugherty v. Southern Cotton Oil Co.

• Decision Date: 14 April 1919
• Docket Number: 183
• Citation: 211 S.W. 179,138 Ark. 329
• Parties: DAUGHERTY v. SOUTHERN COTTON OIL COMPANY
• Court: Arkansas Supreme Court

211 S.W. 179

138 Ark. 329

DAUGHERTY v. SOUTHERN COTTON OIL COMPANY

No. 183

Supreme Court of Arkansas

April 14, 1919

Appeal from Jackson Circuit Court; Dene H. Coleman, Judge; affirmed.

STATEMENT OF FACTS.

Appellants sued appellee to recover damages for injuries sustained by being thrown from a buggy by the horse drawing it becoming frightened at the negligent blowing of a steam whistle at the gin of appellee.

L. D Daugherty lived about one mile east of Newport and worked in a garage in that city. On the 24th day of September, 1917 Mrs. Daugherty drove from their residence into town, in a one-horse buggy drawn by a gentle black horse, for the purpose of bringing her husband home. She was accompanied by her sixteen-months-old infant child. On her way there and back she had to pass the gin of appellee, which was situated on Bridge Avenue in the city of Newport. The engine house of the gin was situated thirty or forty feet from the middle of the street. On her way home Mrs. Daugherty drove with her right hand and had her child in her lap. Just as the horse and buggy got opposite the engine house of appellee, the engineer gave one short blast of the whistle and the horse became frightened. Mrs. Daugherty spoke to the horse and tried to quiet him. The horse jumped to the right and ran striking the hind wheel of the buggy against a telephone or electric light pole near the edge of the sidewalk. Mrs Daugherty and her child were thrown headlong about ten or fifteen feet upon the concrete sidewalk. The horse stripped itself loose from the buggy and ran away. Mrs. Daugherty was painfully injured by her fall and her child was so severely injured that according to the testimony adduced by appellants it died on the 27th of November, 1917, as the result of its injuries. Other evidence tended to show that the child died of Bright's disease. The horse had been frequently driven by the gin on other occasions and had never become frightened at the noises made by the operation of the gin, or the blowing of the whistle. On the occasion in question the whistle was blown one short blast and in the ordinary way. It was an ordinary whistle and was blown in the ordinary way as if to give a signal. The accident happened about 6 o'clock in the evening, which was the usual time for quitting work at the gin. The gin had been shut down during the summer months and was being repaired preparatory for operation during the ginning season.

The court directed a verdict in favor of appellee and the case is here on appeal.

Judgment affirmed.

Gustave Jones, for appellants.

1. The question should have been submitted to a jury as to whether or not there was negligence on the part of defendant under the circumstances of this case, and it was error to direct a verdict. 57 Ark. 429; 56 Id. 387; 98 Id. 413; 61 Id. 141-150; 49 Am. Rep. 611; 76 Me. 282; 202 Pa. 427; 170 Ind. 585; 90 Me. 313; 89 Mo.App. 192; 41 Pa.Super. Ct. 509; 110 Ark. 495, 503.

John W. & Jos. M. Stayton, for appellee.

The ground of negligence is that appellee "carelessly negligently and unnecessarily sounded the whistle, when it knew, or by the exercise of ordinary care could have known, that the whistle so sounded was calculated to frighten horses on the street."

It was necessary therefore before appellee could be called upon to offer its defense for appellant to show:

1. That appellee blew the whistle negligently and unnecessarily.

2. That the sound was calculated to frighten horses on the street.

3. That appellee knew or should have known in the exercise of ordinary care that the sound of the whistle was calculated to frighten horses when blown as it was on this occasion. 58 Ark. 401; 112 Id. 593.

I.

It does not appear with prima facie force that the whistle was blown negligently or unnecessarily.

A steam whistle is not a nuisance per se. 1 Thompson on Neg. 1122; 38 Conn. 438; 40 Id. 399.

II.

The next essential element of the burden of proof upon appellant was to show that the sound of the whistle was calculated to frighten horses. 52 N.H. 401; 76 Me. 282. The mere showing of the accident was not a prima facie showing of negligence, as blowing the whistle was in the usual course of business and necessary to business. 54 Ark. 213; 56 Id. 387; 64 Id. 535.

III.

The burden was on appellant to show that the sound of the whistle was calculated to frighten horses and was known to appellee or could have been known in the exercise of ordinary care. Appellant having failed to make sufficient proof of any of the essential elements of his cause of action, there was no other course for the court to take than to instruct a verdict for defendant. Cases supra.

OPINION

HART, J., (after stating the facts).

The issue raised by the appeal is whether or not the court erred in directing a verdict for appellee.

The use of a steam whistle in a manufacturing establishment or gin is not a nuisance per se, but it may be used so as to become such. Thompson on Negligence, vol. 1, par. 1261. In the application of this principle it has been frequently held that although it is lawful for a manufacturing establishment to maintain a steam whistle, that...