Gates v. Plummer

• Decision Date: 07 March 1927
• Docket Number: 245
• Citation: 291 S.W. 816,173 Ark. 27
• Parties: GATES v. PLUMMER
• Court: Arkansas Supreme Court

291 S.W. 816

173 Ark. 27

GATES v. PLUMMER

No. 245

Supreme Court of Arkansas

March 7, 1927

Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann Judge; affirmed.

Judgment affirmed.

T. D Wynne, for appellant.

Sam T. & Tom Poe, for appellee.

OPINION

SMITH, J.

This suit was brought to recover damages to compensate an injury sustained by Dale Plummer, a boy eleven years old, as the result of being struck by an automobile driven by appellant Gates, the defendant below. The injury occurred on the Galloway Pike, east of Little Rock, about ten o'clock on the morning of February 10, 1925. It was a cold day, and a strong wind was blowing. The road where the boy was struck runs east and west, and was perfectly straight for a mile. Appellee's father and some other men were at work on a house on the north side of the road. On the south side of the road, opposite the house, two automobiles were parked in close proximity to each other. The boy had been sent from the house where the men were at work to get an oil-can out of one of the cars. He got the can, and was standing on the running-board of the automobile when appellant approached in his car. Appellant admitted that he was driving thirty miles an hour, but the jury may have found that he was driving much faster, as one of the men working at the house testified that his attention was attracted to the car by its high speed.

Appellant admitted seeing the boy on the running-board of the car, but he testified that he thought the boy was in a safe place, and he did not reduce his speed. He did blow his horn twice--the first time when he was about 150 yards from the parked cars and the second time when about half that distance. The boy testified that, when he got the oil-can for which he had been sent, he started walking across the road. He did not think any cars were coming. He took a "peep" in each direction as he started across the road, and did not see the approaching car. The boy had crossed the center line of the highway and was on the north side of the road when he was struck, and the testimony shows there was space enough between the parked cars and the boy for appellant to have passed between the cars and the boy had his car been under control. Appellant testified that he turned to the left in an attempt to pass in front of the boy, and thus avoid striking him. Appellant admitted that he did not reduce his speed after seeing the boy, but he testified that he did not have time to do so after discovering the boy's peril.

The testimony shows that the car dragged the boy about 75 or 80 feet after striking him before he was untangled from it, and the car ran twice that distance after striking the boy before it stopped. Appellant explained that fact by saying that he was so surprised and disconcerted by striking the boy that he did not immediately apply his brakes.

An automobile mechanic, who qualified as an expert, testified that appellant's car, running 30 miles an hour, could have been stopped within 60 or 65 feet; that, at 25 miles per hour, it could have been stopped within from 51 to 53 feet; at 35 miles per hour, within from 115 to 120 feet, and at 40 miles per hour it would probably require 200 feet to stop the car.

It is first insisted that the court erred in submitting the case to the jury, for the reason that the undisputed testimony shows either that the injury resulted from an unavoidable accident or would not have happened but for the boy's contributory negligence.

While the case is a close one, we have concluded that, with the inferences reasonably deducible from the testimony, the case was properly one for the jury both on the question of the negligence of appellant and the contributory negligence of the boy. The jury no doubt found that appellant was negligent in running his car at a higher speed than an ordinarily careful and prudent man would have done under the circumstances stated. We are also of the opinion that the court did not err in refusing to declare, as a matter of law, that the boy was guilty of contributory negligence, and that this question was properly submitted to the jury.

An exception was saved to the instruction which submitted the question of contributory negligence to the jury, as well as to the other instructions given in the case. This instruction appears to have been drawn to conform to the law as declared by this court in the case of St. L. I. M. & So. Ry. Co. v. Sparks, 81 Ark. 187, 99 S.W. 73. In that case a boy ten years old was injured by being struck by a moving railroad car while walking across the railroad track, and it was insisted that the trial court should have told the jury as a matter of law that the child was guilty of contributory negligence The trial court had submitted that question to the jury, and it was held that this was not error. In so...