Ft. Smith Light & Traction Co. v. Flint

• Decision Date: 07 January 1907
• Citation: 99 S.W. 79
• Parties: FT. SMITH LIGHT & TRACTION CO. v. FLINT.
• Court: Arkansas Supreme Court

99 S.W. 79

FT. SMITH LIGHT & TRACTION CO. v. FLINT.

Supreme Court of Arkansas.

January 7, 1907.

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

Action by John Flint against the Ft. Smith Light & Traction Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Brizzolara & Fitzhugh, for appellant. John H. Vaughan and Dan Danielson, for appellee.

RIDDICK, J.

This is an action brought by John Flint against the Ft. 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 of 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 ...