Hill v. Maxwell

• Decision Date: 15 December 1969
• Docket Number: No. 5--5044,5--5044
• Citation: 448 S.W.2d 9,247 Ark. 811
• Parties: J. C. HILL, Administrator, Appellant, v. Mrs. Hazel E. MAXWELL et al., Appellees.
• Court: Arkansas Supreme Court

Page 9

448 S.W.2d 9

247 Ark. 811

J. C. HILL, Administrator, Appellant, v. Mrs. Hazel E. MAXWELL et al., Appellees.

No. 5--5044.

Supreme Court of Arkansas.

Dec. 15, 1969.

Barrett, Wheatley, Smith & Deacon, Jonesboro, for appellant.

W. B. Howard and Jack Segars, Jonesboro, for appellees.

BYRD, Justice.

Appellant, J. C. Hill, Administrator of the estate of Jimmy Ray Hill, deceased, brings this appeal from a directed verdict in a wrongful death action in favor of appellees Thomas and Hazel E. Maxwell. At issue is whether there was sufficient evidence to go to the jury on negligence and proximate cause in the operation of the Maxwell automobile.

The record shows that Jimmy Ray Hill had been to the Cotton Club where he had consumed some intoxicants. He left the Cotton Club on foot between 12:00 and 12:30 A.M. He was seen by the City Marshal of Bay walking north toward his home at Bay, along the east shoulder of Highway 63. The Marshal and the occupants in his car had no difficulty seeing Hill who was walking at a normal pace. The last time they saw Hill, he was about one fourth mile south of the Little Bay Ditch Bridge.

The Maxwells had also been to the Cotton Club. They left between 1:20 and 1:25 A.M. with Mrs. Maxwell driving. Mr. Maxwell says that on the way home they were meeting a car on the Little Bay Bridge; that they had their lights on dim; and that while they were on the birdge they struck a man that he had not seen until the pickup truck struck him. The occurrence was reported to the authorities and the man was later identified as Jimmy Ray Hill.

The investigating officer testified that Mrs. Maxwell told him that she thought she hit someone as they came across the bridge--i.e., she only had a glimpse of the object she struck.

The physical facts show that Hill's body was found on the east side of the highway about half way between the highway shoulder and the bottom of the ditch, just north of the bridge and behind the guard rail. There was skid marks commencing immediately north of the bridge 29 feet in length and curving off to the right shoulder. The right skid marks were two feet from the east edge of the pavement. Both lights on the pickup truck burned on bright but only the left headlight burned on dim. The right parking light was broken out, the hood was dented and the right headlight was cocked up.

To support the trial court's action appellees make the following argument:

'In short, the appellant totally failed to show: (a) That the decedent was on the vehicular traveled portion of the highway long ehough for appellees to see him and that their striking of him was inferentially caused by failure to keep a proper lookout; and (b) That a failure to keep the proper lookout was the proximate cause of the decedent's death. All that was shown was that the decedent was killed by appellees' truck at a time when the decedent was on the portion of the highway being traveled by appellees. It might well be argued that the decedent could have been walking along the portion of the highway traveled by vehicles for a considerable distance. Certainly, this was the theory of the appellant in the trial court and continues to be appellant's theory here. However, while this is a plausible theory, a trier of fact is not free to come to such conclusion unless it can be based upon an inference which can reasonably be drawn from the evidence. It is not enough that there are two possible answers as to the time when decedent went upon the main traveled portion of the highway. * * *'

At another place appellees argue:

'Thus, when it was shown that decedent was occupying the portion of the highway being traversed by appellees, there was no presumption that he had so occupied said portion of the highway for any length of time previously. For aught the evidence shows, he stepped into the path of the oncoming vehicle a split second before he was struck. Certainly, if he did so, a failure to keep a proper lookout could not have been the proximate cause of his demise as it would have been impossible to stop the vehicle before striking him.'

As we view the record here there is evidence from which a jury might find or infer that the Little Bay Ditch Bridge is only constructed for two lane traffic (one lane for traffic in either direction); that the bridge is protected by guard rails such as are commonly seen along the highways of this state; that it was necessary for Jimmy Ray Hill to cross the bridge if he proceeded north to his home from the place he was last seen; that in proceeding along the highway he was doing so in a normal manner; that since the City Marshall of Bay had seen Hill while he was walking along the shoulder of the highway, the appellees should have seen him; and that the appellees struck Hill while he was crossing the bridge and that in so doing they did not see him before he was struck. Under somewhat similar facts we held in Yocum v. Holmes, 222 Ark. 251, 258 S.W.2d 535 (1953), that the negligence of the driver of the motor vehicle was properly submitted to the jury on the failure to keep a proper lookout.

On the element of causation, the authorities, Prosser, Torts § 41 (3d ed. 1964), point out that the burden of proof is upon the plaintiff and that he must sustain his proof of causation by more than speculation and conjecture. However it is not necessary that the plaintiff negative entirely the possibility that the defendant's conduct was not a cause. It is enough that the plaintiff introduce evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. Stated another way, it is not required that the proof eliminate every possible cause other than the one on which plaintiff relies, but only such other causes, if any, as fairly arise from the evidence. See Williams v. Reading Co. (3d Cir.1949) 175 F.2d 32. Admittedly truth is stranger than fiction and it is possible that decedent may have stumbled, fallen or jumped into the path of the oncoming Maxwell vehicle, but a motorist who has failed to see what others saw until he struck it with his vehicle is in a poor position to argue that the evidence fairly indicates that stumbling or falling was a probable cause of the collision.

For the reasons stated, we hold that the trial court erred in directing a verdict against appellant.

Reversed and remanded.

FOGLEMAN, Justice (dissenting).

I agree that, when the evidence...