Ft. Smith Light & Traction Co. v. Carr

• Decision Date: 31 March 1906
• Citation: 93 S.W. 990,78 Ark. 279
• Parties: FT. SMITH LIGHT & TRACTION COMPANY v. CARR
• Court: Arkansas Supreme Court

93 S.W. 990

78 Ark. 279

FT. SMITH LIGHT & TRACTION COMPANY v. CARR

Supreme Court of Arkansas

March 31, 1906

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

STATEMENT BY THE COURT.

The plaintiff, Andy Carr, sues to recover damages caused by being knocked down and injured by one of the street cars of the defendant, Fort Smith Light & Traction Company, operated along the streets of the city of Fort Smith.

The injury occurred about eleven o'clock at night. The plaintiff boarded a crowded street car at a park Where a public entertainment was in progress, for return to his home in the city. He stood on the rear platform of the car, and when it approached the street crossing near his home the lights on the car became extinguished for some cause. Without signaling for the car to be stopped, he swung himself off the rear steps on the left side next to the parallel or return track. After alighting he went upon the other track, and was struck by a rapidly moving car going in the direction opposite from that which he had alighted. The lights on that car had also become extinguished, and the testimony is conflicting as to whether or not the gong was sounded.

The complaint sets forth the following charges of negligence on the part of the defendant in the operation of the car by which plaintiff was injured, viz.:

"1. That the car which ran over plaintiff was being operated by an incompetent motorman, known to be such by defendant, or such incompetency might have been known by the exercise of ordinary prudence upon its part.

"2. That said car was not in proper condition for being run and moved in the night, because it had no headlight or other light upon it so that plaintiff could see its approach, or so its motorman could see persons on the street who might be about the track or attempting to cross same in time to stop the car from running upon them.

"3. That said car was running at a dangerous speed, and the motorman did not have same under control.

"4. That the motorman did not, when approaching the street crossing where plaintiff was injured, give any alarm or signal of its approach, either by sounding a whistle or bell.

"5. That the motorman was not on the lookout for or watching for pedestrians who might be on or near the track and about to cross the street.

"6. That he ran car upon plaintiff without giving him notice or warning of its approach, and without observing the presence of plaintiff near the track and about to cross same, when he could have observed the presence of plaintiff by the exercise of ordinary care on his part, if the headlight on the said car had been lighted.

"7. That the motorman did not, when the lights went out on the said car, stop the car until the lights were restored, but continued to run same at a high rate of speed, and that it was unsafe and dangerous to pedestrians on the street to run the cars without lights.

"8. That the motorman did not, when the lights went out, slacken the speed or apply the brakes to the car so as to have same under control."

The defendant in its answer specifically denied all the charges of negligence, and alleged that by alighting from the wrong side and wrong end of the moving car in violation of the rules of the company, of which, it is alleged, plaintiff had notice, and by going upon the parallel track without looking and listening for an approaching car, the plaintiff was himself guilty of negligence which caused or contributed to his own injury.

There was evidence introduced by the defendant tending to establish the fact that the rear gates of cars were required to be kept closed, and that they were closed on this occasion, and that there was a rule of the company requiring passengers to signal the motorman and to depart from the front end of the car, so that the motorman could stop the car and control the departure of passengers. Other evidence tended to show that the rear gates were open on this occasion, and that the observance of this rule was not required on occasions such as this when the car was crowded, or when a conductor was in charge of the car.

The plaintiff testified that, when he approached the crossing where he was accustomed to alight, the lights of the car went out, he got down on the steps, and, facing the direction in which the car was going, looked for an approaching car on the parallel track, and, seeing none and hearing no sound of one swung himself down upon the ground, and walked a few steps in the same direction, and, still not seeing or hearing an approaching car, he attempted to cross the track, when he was suddenly and unexpectedly struck by the car and knocked down. He further testified that the car was not lighted, and that the gong was not sounded nor the alarm given.

The evidence was conflicting as to whether or not the rear gates of the car were closed, and plaintiff testified that they were open.

The contention of the defendant was that plaintiff was guilty of negligence in getting off the rear end of the moving car on the side next to the parallel track without looking and listening for a car approaching on the other track and under circumstances that he could not hear the noise of a car, and that the momentum of his jump or step from the moving car carried him on the other track when he was immediately struck--that the car was so close when he went upon the track that his presence could not be discovered in time to avoid the collision. Evidence was introduced tending to support that contention, but those points were all disputed, and the evidence was conflicting.

There was evidence from which the jury might have found that the car on the other track was from 100 to 150 feet distant when plaintiff alighted from the car and went onto the parallel track. The evidence warranted a finding that there was no light upon the car, that the gong was not sounded, that the speed of the car was excessive, and that the motorman did not have the car under control of the brakes.

The jury returned a verdict in favor of the plaintiff, fixing an amount not...