Fort Smith Light & Traction Company v. Hendrickson

• Citation: 189 S.W. 1064,126 Ark. 377
• Decision Date: 13 November 1916
• Docket Number: 250
• Parties: FORT SMITH LIGHT & TRACTION COMPANY v. HENDRICKSON
• Court: Supreme Court of Arkansas

189 S.W. 1064

126 Ark. 377

FORT SMITH LIGHT & TRACTION COMPANY v. HENDRICKSON

No. 250

Supreme Court of Arkansas

November 13, 1916

Appeal from Sebastian Circuit Court, Fort Smith District; Geo. W Dodd, Special Judge; affirmed.

STATEMENT BY THE COURT.

Appellee sued appellant to recover damages which he alleges were sustained by one of appellant's street cars negligently colliding with a fire wagon in which he was riding. The material facts are as follows:

Appellee Leo Hendrickson, was a fireman employed by the city of Fort Smith and appellant was a corporation operating a street car line in that city. On the afternoon of August 11, 1915 appellee was injured by one of appellant's street cars colliding with a fire wagon in which appellee was riding on his way to a fire. The accident occurred at the intersection of A and Fifth streets. Fifth and Sixth streets run north and south, and are parallel to each other. A and B streets run east and west and are parallel to each other. These streets are 300 feet apart and are 50 feet wide, including sidewalks. Garrison avenue is 100 feet wide. A fire station is situated on Sixth street, one hundred feet north of the corner of A street, and the distance from the fire station down A street to Fifth Street, where the accident occurred, is a little over 400 feet. Garrison Avenue is one block south of where the accident occurred. A fire alarm was turned in from a point between Fourth and Fifth streets on Garrison Avenue. Four fire wagons left the station, above referred to, and appellee was on the first wagon that left the station, riding on the seat with the driver. All the fire wagons were equipped with rotary bells, but the front wagon, upon which appellee was riding was equipped with a triple stroke rotary bell which could be heard above the rest. The gong upon each fire wagon was rung continuously from the time they left the fire station until the accident occurred, and the wagons themselves made considerable noise, each having steel tires and being drawn by horses over brick paved streets. According to the testimony of the plaintiff, the fire wagon on which he was riding was going at a speed of ten or twelve miles an hour, and according to the testimony of the motorman of the street car, it was traveling at a speed of fifteen miles an hour. The fire wagon was driven down Sixth street to A street, and was then turned down A street. The driver said that he intended to turn into Fifth street and began to pull up when he was within 35 feet of the street car and before he saw it. After he saw the car, thinking he would not have time to make the turn, he attempted to drive straight across the track. The street car struck the right hind wheel of the fire wagon and knocked it over so that the fire wagon struck the curb on the southwest corner of Fifth and A streets. The collision occurred in the center of A street. Appellee was on a seat with the driver, but had no control over the team or wagon. The collision pinned him under the fire wagon and he was severely injured. The street car was traveling south toward Garrison Avenue at the time of the accident. The crossing at which the accident occurred is what is commonly called a blind corner. That is to say, it is a corner where a building is on the property line and cuts off the view from the street.

The motorman testified that on this account he began to cut off the power at B Street and reduced the speed of the car to eight or ten miles an hour and began sounding the bell continuously until the accident. That as he approached A Street, about a hundred feet away from it the car was travelling at six or seven miles an hour, and when fifty feet away from A Street the car was traveling at the rate of five of six miles an hour; that at the time of the accident the car was going at a rate of speed at which it could be stopped in thirty or forty feet. The motorman also testified that he tried to stop the car as soon as he saw the fire wagon. According to the testimony of appellee the motorman did not try to stop the car until he got within four or five feet of the fire wagon and the street car at that time was going at the rate of ten miles an hour. There was a city ordinance providing that all fire engines or fire apparatus shall have the right of way upon any street in the city of Fort Smith. Another ordinance provided that when a fire alarm is given by the gongs attached to the fire wagons, all street cars shall be required to stop running until the fire wagons have passed or until the driver ascertains that the fire wagons are not moving in such a direction as to interfere with his car.

Without stating the testimony with more particularity it is sufficient to say that the evidence introduced in behalf of appellee showed that the accident occurred by reason of the negligence of the motorman in charge of the street car and evidence adduced in favor of appellant tended to show that there was no negligence on his part. The jury returned a verdict for appellee in the sum of $ 8,500 and from the judgment rendered appellant prosecutes this appeal.

Judgment affirmed.

Hill, Fitzhugh & Brizzolara, for appellant.

1. There was clearly prejudicial error in instructions 7 and 8 given for plaintiff. They clearly predicated a liability upon the violation of the city ordinance. 116 Ark. 125. Another vice in these instructions is that they made it the motorman's duty absolutely to stop when it was a question for the jury as to whether the motorman was negligent in not stopping. 109 N.W. 619.

2. The lower court confused the doctrine of imputed negligence with that of direct personal negligence. 8 L. R. A. (N. S.) 643 671 and note; 7 So. Rep. 666; 76 S.W. 973; 28 So. Rep. 87.

3. The evidence of witnesses Clayton, Euper, Cleaver and Gardner as to occurrences on Fifth Street cars at various subsequent times was inadmissible. Black Law & Practice in Accident Cases, § 223; 138 N.W. 320; 35 S.W. 297; 50 Ark. Law Rep. 450; 1 Greenleaf on Ev., § 14a; 1 Elliott on Ev., § 157.

4. Miss Parke's testimony was admissible as relevant and material. It stated a fact. 89 Ill.App. 1; 15 So. 508; 39 A. 859, par. 7.

5. The remarks of Ben Cravens, attorney for plaintiff, were highly prejudicial. 116 Ark. 514, 520.

6. The verdict is excessive and the court erred in refusing the instructions asked by defendant. 39 A. 110; 76 Ark. 356; 77 Id. 401; 81 Id. 368; 28 So. 87.

7. The testimony of plaintiff as to his earnings as a prize-fighter was inadmissible. Kirby's Digest, § 1983; 75 Ark. 184; 118 Am. Dec. 35, 37; 115 N.Y. 507; 2 Sh. & Redf. on Negl., § 745; 41 Conn. 66; 87 Mass. 213, 216; 2 S.W. 878; 2 Bish. New Cr. Law, § 35; 1 Cox C. C. 177; Hughes Cr. Law & Pr., § 176; 119 Mass. 350; 1 Hawks (N. C.) 420; 3 Jones (N. C.) 131; 1 Car. & M. 314; 10 Cox 371; 180 F. 779.

Oglesby, Cravens & Oglesby, for appellee.

1. There is no error in instructions 7 and 8. If the evidence established the facts set out, the motorman was guilty of negligence. Specific objections should have been made. 104 Ark. 409; 87 Id. 396. Taken in connection with all the instructions given, they were not prejudicial. 117 Ark. 504; 108 Id. 292; 105 Id. 533; 111 Id. 272; 121 N.W. 12; 108 Id. 95.

2. In this case gross negligence was clearly established. 95 N.W. 100; 113 S.W. 239; 121 N.W. 12; 54 S.W. 470.

3. The testimony of Euper et al was clearly competent. 113 S.W. 239; 95 N.W. 100; 54 S.W. 470; 112 Ark. 457; 115 Id. 101.

4. The verdict is not excessive.

5. There was no testimony that plaintiff earned anything as a prize-fighter. Athletics, including instruction in boxing, is legitimate. The motion to exclude was only a general objection. 112 Ark. 394. His wages were not connected with anything unlawful. 85 Ark. 9; 94 Id. 96; 103 Id. 114.

OPINION

HART, J. (after stating the facts).

It is insisted by counsel for appellant that the court erred in giving instructions numbered 7 and 8 at the request of appellee. The instructions read as follows:

"7. If the evidence shows that defendant's motorman did not hear the approach of the fire wagon upon which plaintiff was riding, in time to stop his car, before the wagon was struck, if it was struck, yet if the jury believes from the evidence that he could in the exercise of ordinary care have heard the approach of said fire wagon in time to stop his car before the collision and that his failure to hear the approach of the fire wagon was not due to the fact that it could not be heard, but to the fact that on account of his failure to listen, he did not hear same, and that he could have beard same in time to stop the car if he had listened, with ordinary care and attention, then the motorman was guilty of negligence in the operation of the car."

"8. If the jury believe from the evidence that a fire alarm was given by the ringing of fire bells or by gongs attached to the hose cart or fire wagons, and that the motorman, operating the street car at the time of such alarm, heard such alarm before colliding with the fire wagon, provided he might reasonably apprehend that fire wagon was moving toward such car track, then it was his duty to stop the car until said fire apparatus passed, or until he ascertained that same was not moving in such direction as to interfere with the car. If the jury believe from the evidence, he could have heard same in time to stop the car before a collision if he had been listening with ordinary care and attention, the defendant is held to the same duty as if the motorman did in fact hear the alarm."

It will be remembered that there was a city ordinance which provides that when a fire gong is sounded all street cars shall be required to stop running until fire wagons shall have passed. It is insisted that the instructions,...