Gookin v. Locke

• Decision Date: 30 May 1966
• Docket Number: No. 5--3854,5--3854
• Parties: John W. GOOKIN, Appellant, v. Harry LOCKE, Appellee.
• Court: Arkansas Supreme Court

Page 256

405 S.W.2d 256

240 Ark. 1005

John W. GOOKIN, Appellant, v. Harry LOCKE, Appellee.

No. 5--3854.

Supreme Court of Arkansas.

May 30, 1966.

Rehearing Denied July 25, 1966.

Guy Brinkley, Piggott, Wright, Lindsey & Jennings, Little Rock, for appellant.

Gordon & Gordon, Morrilton, for appellee.

J. L. (BEX) SHAVER, Special Justice.

This is an action for the recovery of damages resulting from a traffic mishap that occurred between a car being driven by appellee, Locke, and one driven by appellant, Gookin.

The appellee alleged in his complaint that the damages were caused by the negligence of the appellant in that (a) he was traveling at a high rate of speed, (b) he failed to keep a proper lookout, (c) he failed to yield right of way to an emergency vehicle, (d) he failed to turn off of the highway onto the shoulder of the road when he saw emergency car approaching and giving signals, and (e) he failed to use care and caution of an ordinary prudent person under the same or similar circumstances.

The appellant denied the allegations of the complaint and filed a counter-claim, alleging that the collision was caused by the negligence of appellee in that (a) he failed to maintain a proper lookout, (b) he failed to have his vehicle under proper control, (c) he was traveling at an excessive rate of speed under the circumstances, (d) he failed to yield right of way, (e) he was driving on wrong side of road, and (f) he attempted to pass traffic on a curve when his view of approaching traffic was obstructed.

The appellant made timely motions for a directed verdict which were overruled by the Court. The cause was submitted to the jury upon instructions that set forth the issues of negligence as contended for by both parties, including an instruction on comparative negligence.

The jury returned a verdict in favor of appellee, Locke, in the sum of $14,000.00. From judgment on the verdict the appellant brings this appeal.

The appellant states the lower Court erred in not directing a verdict in his favor because there is no substantial evidence in the record showing that he was negligent. This is the only question to be decided on this appeal.

The rule is well settled in this state that if there is any substantial evidence of negligence on the part of the defendant when viewed in the light most favorable to the plaintiff and given its highest probative value, the question must be submitted to the jury. Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S.W.2d 4; Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S.W.2d 290. With this rule in mind we will examine the evidence in this case.

On the morning of January 25, 1965, State Trooper Harry Locke, appellee, who was stationed at Morrilton, Arkansas, was notified by the Russellville Police Department that two boys had burglarized a business in Morrilton, and the Russellville Police had engaged in a gun fight with them and requested appellee to come to Russellville to help them. Appellee proceeded west toward Russellville on U.S. Highway 64, driving a 1963 Special Blue Ford State Police car, marked with two stars on the door, and equipped with a siren and a red light on top of the car. As appellee was leaving Atkins, traveling west on U.S. Highway 64, a small car identified as a Ford Falcon, with a Texas license, turned into U.S. Highway 64 at an unreasonable rate of speed, and headed west. Appellee, believing the said car needed checking, went in pursuit of it.

Highway 64 west of Atkins is a two lane pavement running east and west through slightly rolling, open countryside. From the western city limits of Atkins for a distance of a mile to the west, the highway is straight and, for all practical purposes, level. When one reaches the Nottenkamper home, which is located about one (1) mile west of Atkins, the highway for westbound traffic curves slightly to the right and then takes a slight curve to the left.

Conversely, an eastbound car approaching this location would encounter a slight curve to the right and then a slight curve back to the left before entering on the straight portion of the highway leading directly to Atkins. There is a slight depression between the two curves. The record contains photographs of the highway and engineer's drawing which reflect the terrain, highway, etc. Sight distances looking both east and west from a reasonable distance from collision were testified to by several witnesses to show that each party could have seen the approaching car of the other if a proper lookout had been kept.

The said Falcon car traveling west at a high rate of speed passed a trailer truck that was going west on said highway. Appellee, continuing his pursuit of the Falcon car, undertook to pass said trailer truck, and before passing same turned on his red light and blew his siren to warn the truck driver of his approach. There is a dispute as to whether the siren continued to sound up to the time of the collision so as to give the Locke vehicle the status of an emergency vehicle under Ark.Stat.Ann. § 75--725 (Repl.1957); and we assume the negative for the purpose of this Opinion. The truck slowed down and pulled over to the right of the road. As appellee overtook the trailer truck and was in the act of passing same, he met the car proceeding in the opposite direction being driven by the appellant, Gookin. Appellee pulled his car over close to the truck and applied his brakes. Appellant also applied his brakes, and both cars collided. Both appellant and appellee were seriously injured.

The point of impact of the cars was 41 feet east of the Nottenkamper home, and was approximately two feet south of the center line of the highway in the eastbound traffic lane. The skid marks from appellant's car extended west from the point of...