Haralson v. Jones Truck Line, 5-418

• Decision Date: 14 June 1954
• Docket Number: No. 5-418,5-418
• Citation: 223 Ark. 813,270 S.W.2d 892,48 A.L.R.2d 248
• Parties: , 48 A.L.R.2d 248 HARALSON v. JONES TRUCK LINE et al.
• Court: Arkansas Supreme Court

Page 892

270 S.W.2d 892

223 Ark. 813, 48 A.L.R.2d 248

HARALSON v. JONES TRUCK LINE et al.

No. 5-418.

Supreme Court of Arkansas.

June 14, 1954.

Rehearing Denied Oct. 4, 1954.

Gordon & Gordon, Morrilton, for appellant.

Louis Tarlowski, Little Rock, and J. M. Smallwood, Russellville, for appellees.

GEORGE ROSE SMITH, Justice.

This is an action for wrongful death, brought by the appellant as administratrix of the estate of Carl Brady Charles. The three defendants are the Jones Truck Line, its employee Jack Fulfer, and Clifton Duvall. At the close of the plaintiff's proof the trial court directed a verdict for the defendants. The question is whether the plaintiff made a case for the jury.

At the trial the plaintiff called the defendants Fulfer and Duvall as witnesses, and she now relies principally upon their testimony. These two men, who appear to have testified with complete candor, are in agreement as to the manner in which Charles met his death.

On the night of April 24, 1953, Fulfer was driving one of his employer's trucks west on Highway 64. For some distance Duvall, in his own truck, had been following Fulfer, awaiting an opportunity to pass him. On a long straight stretch near the town of Blackwell the two trucks met a car coming from the opposite direction. Both men dimmed their headlights. As soon as the approaching car had gone by, Fulfer, with his own headlights still dimmed, flashed his rear clearance lights. Both witnesses testify that this is a signal, well understood among truck drivers, by which the leading driver invites the other to pass.

Duvall, acting upon this signal, entered the lefthand traffic lane and overtook Fulfer's truck; but in doing so he did not switch his headlights to the bright beam. When the vehicles were abreast the two drivers for the first time saw Charles, who was walking west on the left side of the highway, with his back to the oncoming trucks. Both drivers swerved to their right in an effort to avoid an accident, but the extreme left hand side of Duvall's truck hit Charles and killed him. The point of impact was two or three feet from the lefthand edge of the pavement.

An issue common to all three defendants is whether Charles was guilty of contributory negligence as a matter of law. We cannot say that he was. Pedestrians as well as motorists are entitled to use the public highways; each must act with regard to the presence of the other. Oliphant v. Hamm, 167 Ark. 167, 267 S.W. 563; Morel v. Lee, 182 Ark. 985, 33 S.W.2d 1110. One who walks on the righthand side of the street, with his back to traffic, is not necessarily guilty of contributory negligence. Yocum v. Holmes, 222 Ark. 251, 258 S.W.2d 535. The plaintiff's position is even stronger, for Charles was walking on the left side of the highway, as recommended by the safety rules of the Highway Department. In these circumstances it was for the jury to say whether Charles was contributorily negligent.

The remaining question is whether the proof would have supported a finding of negligence on the part of the truck drivers, or either or them. With respect to Duvall, whose vehicle actually struck Charles, little need be said. His lights were still dimmed when he first saw the decedent, who was then only twenty or twenty-five feet away. The law requires that the bright headlight beam be of sufficient intensity to reveal persons at a distance of at least 350 feet. Ark.Stats.1947, §...