Ft. Smith Light & Traction Co. v. Barnes

• Decision Date: 23 July 1906
• Citation: 96 S.W. 976,80 Ark. 169
• Parties: FT. SMITH LIGHT & TRACTION COMPANY v. BARNES
• Court: Arkansas Supreme Court

96 S.W. 976

80 Ark. 169

FT. SMITH LIGHT & TRACTION COMPANY v. BARNES

Supreme Court of Arkansas

July 23, 1906

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

STATEMENT BY THE COURT.

Appellee alleged that, while she was attempting to cross Garrison Avenue in the city of Fort Smith, she was struck, knocked down and run over by one of appellant's cars and greatly injured, to her damage in the sum of $ 10,000, for which amount she asked judgment. She alleged that the negligence of appellant, by which she was injured, consisted (1), in operating the car at an unlawful speed of 25 miles per hour (2) in failing to sound the gong; (3) in the failure of the motorman to stop the car after he was apprised of her perilous position; (4) in not having the brake on the car in proper condition; (5) in the failure of the motorman to keep a lookout for pedestrians in the street.

The appellant, after denying all material allegations of the complaint, set-up the defense of the contributory negligence of appellee.

Appellee a woman about 40 years old, whose hearing was very defective but whose sight was good, on the morning of June 10, 1904 between nine and ten o'clock, was walking across Garrison Avenue in the city of Fort Smith, when she was struck, knocked down and very severely injured by appellant's car. Appellee was walking leisurely across the street. There were double car tracks in the middle of the street. The cars from the western direction could be seen for several blocks from the place where appellee was injured. She had gone nearly to the first track before she saw a car. She there looked, saw a car some distance away, thought she had plenty of time to cross, did not look again, but only listened for the bell and went on. She heard "a confusion, looked up and saw the car too close to get out of the way," and then did not remember anything more about it. This was according to appellee's individual testimony. Other witnesses in her behalf say that she was moving across the street deliberately, rather slowly; that she was crossing the street diagonally, and seemed to be looking to the south, "head down and sidewise." One witness says she had something in her hand, and seemed to be looking at it.

One of the witnesses on behalf of appellee testified that as he came to the front of his store he looked up and saw Mrs. Barnes (appellee) coming across the street, and at the same time he noticed a car; he did not suppose the car was over twenty feet from where it struck her, between twenty and thirty feet. He thought she was not going to try to cross the track, but she went on; and when she got on the track where she was struck, the car was then within twelve or fifteen feet of her. The witness hallooed. She seemed to hear him, turned and "grabbed at the dashboard," and was drawn under the car. At the time this witness saw Mrs. Barnes she was about the north rail of the north track, some eight and one-half or nine feet from the north rail of the track on which she was struck. The car, according to this witness, was running about twelve miles per hour. At the time he hallooed, or just after, he heard a gong sound. Just before the car struck appellee, the motorman was trying to lean over, and was trying to stop the car, and looked like he was hallooing.

Another witness for appellee was in a buggy on the avenue near where the injury occurred, and saw it. Appellee was going diagonally across the street. She had something in her hand, and seemed to be looking at at; had her head cast down. She was moving deliberately and slowly towards the tracks. Witness looked toward the river, and saw car coming. It did not seem to be moving faster than they ordinarily travel. The witness heard two sounds of the gong. The bell rang twice in succession. It was a dull sound. The witness barely heard it. He was some sixty-two or sixty-three feet from the car at the time. Witness looked from the woman back to the motorman. He looked from one to the other. The motorman looked straight ahead down the avenue, and then turned and spoke to a man by his side. At the time this occurred the woman was about half way between the north and south track. When the motorman looked east, and turned and talked to the man, it was almost instantly. The motorman was within twenty feet of the woman at the time he turned to speak to the man. At the time the motorman turned to speak to the man the woman was between the north and south tracks. She had not reached the south track at that time, and the witness says she was in no danger. The motorman, when the witness looked back at him, seemed to have his hand on the iron that controls the car, the brake, and was talking to another man in front. He looked once toward the direction of the street ahead, his vision was in the direction of the woman, then he turned again and commenced talking to a man. When the motorman looked in the direction of the woman, there was nothing to prevent him from seeing her. There was testimony on behalf of appellee tending to prove that the gong or bell was hard to ring, that they had to jump on it to make it ring, and that then it only made a "faint" sound. There was testimony also tending to show that the car at the time it struck appellee was running more than fifteen miles per hour. An ordinance of the city prohibited street cars from running more than fifteen miles an hour on Garrison Avenue. There was testimony on behalf of appellant tending to prove that the gong was in good condition and the car otherwise well equipped, that the motorman was free from negligence in operating the car, that he did all in his power, after discovering the perilous position of appellee, to prevent injuring her.

The court, among others, gave the following instructions. on its own motion:

"4. If you find from the evidence that one of defendant's servants or agents was in charge of one of defendant's cars in and upon Garrison Avenue in the city of Fort Smith at the time mentioned in plaintiff's complaint, and that said servant or agent saw plaintiff on or near the track upon which said car was moving, and that said servant saw plaintiff was in danger of being struck and run over by said car, and that she was unaware of such danger, and could not avoid it, and that he so saw her in time to have avoided the said car striking and running over her by the exercise of ordinary care on his part, if in fact she was struck and run over by said car, and that said servant or agent, after he so saw plaintiff, neglected and failed to use ordinary care to prevent said car from so striking and running over her, if in fact she was so struck and run over, then your verdict will be for plaintiff, notwithstanding you may further find from the evidence that plaintiff was negligent in being upon or near said track.

"6. If you find from the evidence that defendant was, at the time mentioned in plaintiff's complaint, operating a system of street cars over its track or tracks in Garrison Avenue in the city of Fort Smith, then it became and was the duty of the defendant, in so operating its cars over said track, to use that degree of care and caution that a man of ordinary care and prudence engaged in such business would exercise so as not unnecessarily or negligently to injure persons occupying said avenue.

"8. Contributory negligence in actions like this is a defense on the part of the defendant. But contributory negligence is never presumed; it, like any other fact, must be proved, and the burden of proving circumstances or facts that prove plaintiff herself was negligent is upon the defendant, which it must establish by the evidence fairly preponderating upon this proposition, unless it sufficiently appears to you from the evidence introduced by plaintiff. And, should you find from the evidence that plaintiff herself was guilty of some negligent act or acts that proximately contributed to cause the injuries complained of, your verdict will be for the defendant, unless you should further find from the evidence that defendant's agent or servant in charge of one of defendant's cars at the time and place mentioned in the complaint became aware of the negligence of plaintiff, if there was any such negligence, in time, by the exercise of ordinary care and diligence upon his part, to have avoided injuring plaintiff, if you find she was so injured."

And at the request of appellant gave the following:

"7. It was the duty of plaintiff to look and listen before she went upon the track; and if she was so deaf that she could not hear an approaching car, or the gong upon such car, as persons of ordinary hearing can, then she was bound to make more careful use of the sense of sight; and if you find that she could have seen the car in time to avoid it, she can not recover, unless you further find that the motorman was negligent after he saw her danger.

"8. The burden of proving that the motorman saw the plaintiff's peril in time to avoid striking her, and that he was negligent in not exerting himself to stop after he saw her peril, is upon the plaintiff.

"9. If, at the time plaintiff stepped upon the track, the car was so far away that she could have safely turned back or passed on before it, she can not recover, unless the motorman was negligent in failing to stop after he saw her peril."

The court also gave many other instructions covering every phase of the testimony. The court refused to give a general peremptory instruction in favor of appellant, and also refused requests for specific peremptory instructions in favor of appellant on the particular allegations of negligence in the complaint.

The jury returned a verdict of $ 1,750. Judgment was entered for said amount, which this appeal seeks to reverse.

Judgment affirm....