Gurdin v. Fisher

• Decision Date: 10 June 1929
• Docket Number: 26
• Parties: GURDIN v. FISHER
• Court: Arkansas Supreme Court

18 S.W.2d 345

179 Ark. 742

GURDIN v. FISHER

No. 26

Supreme Court of Arkansas

June 10, 1929

Appeal from Garland Circuit Court; Earl Witt, Judge; affirmed.

Judgment affirmed.

Rowell & Alexander, for appellant.

Buzbee Pugh & Harrison, for appellee.

OPINION

MEHAFFY, J.

Mrs Millie Gurdin, one of the appellants, filed suit in the Garland Circuit Court against appellees, and her deceased husband, during his lifetime, had filed suit, and, after his death, his son, Charlie Gurdin, filed a substituted complaint as administrator of the estate of N. Gurdin, deceased, and the two cases, that is, the cases of Mrs. Millie Gurdin and Charlie Gurdin, administrator, were consolidated and tried together.

It was alleged by Millie Gurdin that on the 10th day of July, 1927 she was the invited guest in an automobile owned by the appellee Rose Fisher, and driven by the appellee Charles Rosenfield. She alleged that Rose Fisher is liable to the appellant for the negligence of her agent, driving said car at her direction and request, and that Charles Rosenfield is liable personally for the negligence complained of; that appellee and Charlie Gurdin and N. Gurdin, husband of Millie Gurdin, had started from Hot Springs, Arkansas, to Pine Bluff, Arkansas, in a car belonging to Rose Fisher and driven by Charles Rosenfield, and that in driving said car on the highway near Red Gates Inn, in Pulaski County, Arkansas, the appellee carelessly and heedlessly, and in wanton disregard of the rights and safety of appellant, and without caution and circumspection, and at a speed in a manner to be dangerous, negligently drove said car off of the pavement. While said car was in motion the defendant, Charles Rosenfield, negligently handled and manipulated said car, after it left the pavement, by suddenly turning said car back on the highway. At the time said car was negligently permitted to leave the pavement the right wheel sank into a deep rut, and while in that position, without stopping the car or slowing its speed, appellee Charles Rosenfield negligently and carelessly turned the car in such a manner which caused said car to wreck and turn over twice, and severely injure this appellant.

There were other allegations about the width of the pavement and there being no necessity to leave the pavement, and allegations of negligence in handling the car as it left the pavement, and about the injury to the appellant. It was alleged that Charles Rosenfield was driving the car at the direction and under the control of Rose Fisher, as her agent, and that both of them were liable to appellants; that they were both negligent, and caused the injury. The injury then is described by appellant, and the extent of it. She alleged that her injuries were permanent, and asked for $ 25,000 damages.

The complaint of Charles Gurdin, administrator, contains the same allegations of negligence as the complaint of Mrs. Millie Gurdin, and asks for damages for pain and suffering of N. Gurdin.

The defendants filed answers, denying the material allegations of the complaints. There was a verdict and judgment for the appellees, and this appeal is prosecuted by appellants to reverse said judgment.

We deem it unnecessary to set out the testimony as to the extent of the injuries received by N. Gurdin and Mrs. Millie Gurdin, because the verdict was against them. There was a sharp conflict in the testimony as to the extent of the injuries.

Millie Gurdin testified that she lived in Hot Springs, Arkansas; was 48 years old, and had four sons and one daughter; that before the accident she was in good health, and had never had a doctor. She was injured on Sunday morning, July 10. She wanted to go to Pine Bluff to see her daughter, and Mr. Rosenfield and Miss Fisher wanted to go with her. They had a new car, and told her son, Charlie, that they would take them in the new car. Sunday morning between six and seven o'clock they blew their horn, and she was ready. Miss Fisher was in the back seat with Mr. and Mrs. Gurdin, and Mr. Rosenfield and Charlie Gurdin were in the front seat. About ten miles from Little Rock Mr. Rosenfield, some way or other, got in a rut, or got in something, and all witness knew was a jar and a shock, and the car went over and she was hurt. She testified they were all hurt, but she was hurt worse, except for her husband, who was hurt worse than she was. She did not know how Rosenfield got off the concrete. Imagined he was driving too fast, but really could not tell the speed. He was going between 45 and 50 miles an hour. Could not tell exactly, because she was in the back seat. Before they left Hot Springs, witness stated that Miss Fisher said: "Mr. Rosenfield is going to drive to Little Rock, and if he gets tired I guess Charlie will take the wheel." Miss Fisher told her that Charlie Rosenfield was going to drive for her (it was her car) to Little Rock, and Charlie Gurdin would drive after they got to Little Rock.

She then testifies about her injuries and doctor bills, and said she didn't look at the time after it happened, but guessed it was between nine and ten. They had been gone about an hour and a half or an hour and forty-five minutes.

The parties were friendly before the accident. They had been riding along as a party of friends, never thinking about an accident. Witness said if she was not mistaken she remarked two or three times about going fast, but when people were driving and it wasn't her car she couldn't say stop. She was going to Pine Bluff Sunday morning. Her son, Charlie, came home Saturday night, and said, "Mamma, we are going with Charlie Rosenfield and Rose Fisher in her new car," and she said "All right." They had been planning to drive over in their car. Rosenfield and Rose Fisher appeared at witness' house between six and seven o'clock on Sunday morning, and Rosenfield was to drive to Little Rock, and Charlie Gurdin was to drive from Little Rock to Pine Bluff. She noticed Rosenfield driving fast, but told nobody but her husband. He kept driving fast until the accident happened. The accident happened somewhere around Red Gates Inn. Rose Fisher suggested that Rosenfield drive to Little Rock. Witness then testified about her husband's injuries.

Charlie Gurdin testified that he was twenty-eight years of age, and that he was a son of the appellant. That on July 10, 1927, Charlie Rosenfield, at the request of Rose Fisher, took them from Hot Springs to Little Rock. They called by the house to pick them up, and Rose Fisher said that Charles Rosenfield would drive from Hot Springs to Little Rock and that witness would take the wheel at Little Rock and drive to Pine Bluff. The accident happened a few minutes after eight o'clock. Witness said that Rosenfield was making curves a little fast, and that he cautioned him once or twice. The curves on the Hot Springs highway up to the Pulaski County line are protected; the curves are easier on the Hot Springs highway to take than the flat curves on the Pulaski County road; the result was, when he hit this curve the momentum at which he was driving pulled him off the curve, right off the road. He did not go off very far, however, but it happened there was a rut paralleling the road, about eight or ten inches in depth. When the front wheel hit the rut, it naturally pulled the back one in, and, instead of using ordinary prudence and caution in driving through that rut, he jerked his wheel around, and when he jerked his wheel around he jerked it all of the way over, and caused the car to run completely from the right side of the road around on the left, and turn over. He made one complete turn of that wheel, and held it there. When he jerked his wheel around, he ran his wheel just as far over to the left as he possibly could, and never righted it. The car turned over at least twice, or one and a half times, to be exact.

Witness testified about the condition of his father and mother, and their injuries. He then said that if Rosenfield had continued through the rut he would have got back on the pavement all right. The trouble was he was trying to cut out of the rut. Witness hollered to him, "Don't cut, go through." He was told he would take the car from Little Rock to Pine Bluff. His mother was going to Pine Bluff to see her daughter, and witness went along to help drive as much as anything else.

Charles Rosenfield testified that he was engaged in the mercantile business in Hot Springs; that he knew Mr. Gurdin during his lifetime; knew Mrs. Gurdin and Charles Gurdin. He was a brother-in-law to Miss Rose Fisher. On Saturday night, July 9, he was in his place of business, and Charlie Gurdin came in with his sister-in-law, and asked witness whether he would be willing to go see his sister in Pine Bluff. An engagement was made for Sunday morning at 6:30. Witness understood at the time whom he was going with, but made no statement about whose car they were going in. They did not have any understanding either way about whose car they were going in and it was understood that they would be over there at 6:30. They took Miss Rose Fisher's car down to the garage and filled it with gasoline, and went up there at 6:30. The Gurdins came out, and they started. Witness understood that Charlie Gurdin was tired, and that he would drive from Hot Springs to Little Rock and Charlie Gurdin would drive from Little Rock to Pine...