Fort Smith Light & Traction Co. v. Flint

• Decision Date: 07 January 1907
• Citation: 99 S.W. 79,81 Ark. 231
• Parties: FORT SMITH LIGHT & TRACTION COMPANY v. FLINT
• Court: Arkansas Supreme Court

99 S.W. 79

81 Ark. 231

FORT SMITH LIGHT & TRACTION COMPANY v. FLINT

Supreme Court of Arkansas

January 7, 1907

Appeal from Sebastian Circuit Court; Styles T. Rowe, Judge reversed.

Judgment reversed and cause remanded.

Brizzolara & Fitzhugh, for appellant.

Where the plaintiff was guilty of contributory negligence, the defendant was only bound to exercise ordinary care to avoid injuring him, after discovering his perilous position. 62 Ark. 164; 64 Ark. 420; 91 S.W. 748; 101 N.W. 298; 78 S.W. 82.

2. It is error, for which this court will reverse, if the trial court refuses to reduce oral instructions to writing when requested. Kirby's Dig. § 6196; 51 Ark. 177.

3. After having instructed the jury that there was no evidence that the motorman was incompetent, it was error to permit plaintiff's counsel to argue that the defendant was liable because of the motorman's incompetency. The court's refusal to check counsel was an indorsement, in effect, of his statements. 69 Ark. 67.

4. Where a person permits his team to remain on the street car tracks until struck by a car, he cannot recover. 25 Ad. 601; 40 A. 67; 24 A. 688; 62 N.W. 1007; 74 N.Y.S. 844; 75 S.W 672; 37 So. 452.

Dan Danielson, for appellee.

1. The verdict will not be disturbed where there is sufficient evidence to sustain it. 51 Ark. 467; 70 Ark. 136.

2. If either party is entitled to complain of the so-called oral instructions given, it is the plaintiff, since they were more favorable to the defendant than to him; but failure to reduce them to writing was a mere unsubstantial error, and the court will not reverse on that account. 51 Ark. 177.

3. Under the evidence and the instructions, counsel for plaintiff was justified in arguing to the jury that defendant was liable because the motorman was incompetent. 69 Ark. 648.

4. Motormen are required to keep a reasonable and careful lookout to discover pedestrians and vehicles on or approaching the track, so as to be able to take proper precaution to avoid injuries. 72 Ark. 572.

OPINION

RIDDICK, J.

This is an action brought by John Flint against the Fort Smith Light & Traction Company to recover damages for injuries occasioned from a collision with a street car. Flint was driving a wagon, which was struck by a street car, resulting in severe injuries. He testified on the trial that he was driving, and that, as the wagon got on the street car track one of the horses hitched to the wagon balked and refused to move forward. That he did all he could to get them across, but was unable to do so, until the wagon was struck by the car, and he was injured. On the other hand, several witnesses testified that the plaintiff deliberately stopped the wagon on the street-car track and remained there until the wagon was struck and knocked over by the car. There seems from the transcript to have been a conflict in the evidence on this point, and, if so, the question whether the plaintiff was guilty of contributory negligence should have been left to the jury. But the trial judge was of the opinion that the evidence clearly showed negligence on the part of the plaintiff, and he told the jury that under the testimony and conceded facts the plaintiff was guilty of contributory negligence, and that he could not recover unless they believed "from the evidence that defendant's motorman in charge of its car actually discovered plaintiff's perilous position in time to have prevented injuring him and negligently failed to do so." Assuming that the plaintiff was guilty of negligence contributing to his injury, and the evidence tends very strongly to show that he was, this was a correct statement of the law. But counsel for plaintiff in his closing argument made the following statement to the jury:

"The defendant in this action was liable to the plaintiff because the motorman, E. V. Sappington, was inexperienced and did not know how to manage and control the car that injured plaintiff; and that defendant was liable because it had permitted Sappington to operate the car, and that Sappington did not have sufficient experience to exercise proper care in controlling the car."

The defendant objected to this statement at the time, but the court overruled the objection, and defendant contends that this ruling of the court was erroneous and prejudicial.

There was evidence tending to show that W. T. McMinn was motorman in charge of the car at the time of the accident, and that Sappington...