Duckworth v. Stephens, 110.

• Court: Supreme Court of Arkansas
• Writing for the Court: Butler
• Citation: 30 S.W.2d 840
• Parties: DUCKWORTH et al. v. STEPHENS et al.
• Docket Number: No. 110.,110.
• Decision Date: 14 July 1930

30 S.W.2d 840 DUCKWORTH et al.
v.
STEPHENS et al. No. 110. Supreme Court of Arkansas. July 14, 1930. Rehearing Denied September 22, 1930.

Page 841

Appeal from Circuit Court, Crawford County; J. O. Kincannon, Judge.

Action by Walter Stephens and others against Bob Duckworth and others. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Pryor, Miles & Pryor and Warner & Warner, all of Ft. Smith, for appellants.

Partain & Agee, of Van Buren, for appellees.

BUTLER, J.

At a point on highway No. 64, connecting Van Buren with Alma, 2 miles from the first-named city, the highway is surfaced with concrete 18 feet wide; spaces being on either side between the concrete and ditches 4 or 5 feet wide, called shoulders. At this point the highway is straight for a half mile or more. About midnight on October 12, 1929, two women and a young man were traveling east in a one-horse buggy. When they reached the point above described, the young man, who was seated on the left, drove the buggy to the extreme right of the highway with the right wheels well out on the shoulder and stopped the buggy for the purpose of alighting and proceeding to his home nearby; it being the purpose of the women to continue further east in the buggy to their homes. Just as the man reached the ground, a Ford coupé, also traveling east, struck the buggy violently from the rear, demolishing it, killing the horse, and severely injuring the man and the women. There were four persons in the Ford coupé, two men and two women. After striking the buggy, the Ford continued on without pausing for some further distance. One or two persons followed in another car which had appeared on the scene and overtook the Ford coupé a short distance away as it was turning around and from there followed it back, passing the point of collision and into Van Buren, where the driver was stopped and arrested. It was then discovered that the car belonged to the appellants, and the driver was one Duckworth, who was their employee.

Out of the occurrence above narrated has arisen this litigation which resulted, on a consolidation of the cases in the court below, in a verdict for each of the parties injured. From that verdict and judgment is this appeal.

It was and is the theory of the appellees that the driver was negligent in driving his car off the concrete and along the shoulder of the highway and in failing to keep a proper lookout ahead, and that this negligence was the direct efficient cause of the collision. The appellants' (the employers of Duckworth) liability is predicated on the theory that the driver, Duckworth, was their servant and his negligence occurred from which the injury resulted while he was engaged in the service of his masters. Appellants defended on the ground that Duckworth was in the exercise of due care at the time of the collision and that this occurred because of the contributory negligence of the appellees in traveling at night without a light on their buggy and in

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stopping same on the side of the highway without having a light attached to it in the manner and of the kind required by the highway traffic statutes. As a further defense, appellants contend that, while Duckworth was in their employ and the automobile used by him was their property and given to him for use in their service, at the time of the collision he was on a mission purely personal to himself and in no way connected with the discharge of any service or duty for them.

At the trial testimony was introduced by appellees relative to the pursuit and capture of Duckworth over the objection and exceptions of the appellants. The admission of this testimony is here assigned as error. At the time of its admission, the court limited its consideration solely to the purpose of identification of the car and its driver and admonished the jury not to consider it for any other purpose. If the driver's conduct in failing to stop at the scene of the collision and continuing on until forced to stop was no part of the res gestæ and inadmissible as tending to establish his want of care, it was clearly competent for the purpose to which it was limited by the court, even though the identification might have been established by other evidence. The admission of this testimony was therefore not error.

The physician who treated Stephens, the man who was injured, when he was first carried to the hospital, testified as to the character and extent of the injuries. He stated that they were of a painful and serious nature, and gave it as his opinion that the skull was fractured at the base and from this and the accompanying symptoms he concluded the injuries might occasion insanity, epilepsy, or death. At the time of his testimony he had not seen Stephens since he left the hospital some months before. Stephens had testified that his ear was still discharging pus, and the physician testified, that, if this were true, Stephens' condition was still serious. On cross-examination, the physician stated that he did not know what the final outcome of the injuries would be, and that he did not mean to state what his condition might or might not be later; that possibly none of the results he anticipated and to which he testified might occur. At the conclusion of the physician's testimony, the appellant stated to the court: "As I understand Dr. Taylor's testimony he is not willing to state the conditions and extent of the injuries to Stephens or even a probability, but that it is merely a possibility and may not happen. Therefore, we move to exclude all of the testimony of Dr. Taylor insofar as that is concerned." This motion was overruled, and appellants excepted, and here urge the action of the court as reversible error, and in support of their position cite and rely on the case of St. L., I. M. & S. R. Co. v. Bird, 106 Ark. 177, 153 S. W. 104, 107. In that case the court held that the testimony of the physician was too vague and uncertain to be a sufficient basis upon which the jury might assess damages for permanent injury. In holding the evidence insufficient, the court said: "The testimony, viewed in the strongest light in favor of appellee, does not make it reasonably certain that Wharton Bird was permanently injured. Unless there is testimony tending to show with reasonable certainty that the injury is permanent, the court should not permit the jury to assess any damages for permanent injury." The court, by its instruction No. 9, in effect eliminated the testimony of Dr. Taylor regarding possible future conditions and permanency of the injury, but the appellants contend that the instruction did not cure the vice inherent in the court's action in refusing to eliminate the doctor's testimony in these particulars entirely from the consideration of the jury. But the doctor had testified positively to the condition of Stephens when he was brought to the hospital that he was...