Hill v. Wilson

• Decision Date: 28 November 1949
• Docket Number: 4-8983
• Citation: 224 S.W.2d 797,216 Ark. 179
• Parties: Hill v. Wilson
• Court: Arkansas Supreme Court

224 S.W.2d 797

216 Ark. 179

Hill v. Wilson

No. 4-8983

Supreme Court of Arkansas

November 28, 1949

Appeal from Conway Circuit Court; Audrey Strait, Judge.

Affirmed.

Gordon & Gordon and S. Hubert Mayes, for appellant.

Phil Loh and Lynn Wilson, for appellee.

Leflar J. George Rose Smith, J., dissenting.

OPINION

Leflar J.

This is an action for damages brought by four plaintiffs against two defendants for injuries suffered in a collision of three motor vehicles on a public highway.

On April 15, 1948, the three motor vehicles were traveling in a westerly direction, perhaps fifty yards apart, on U. S. highway 64 about two miles west of Morrilton, approaching Point Remove bridge. The front vehicle was a heavy Diesel-powered truck pulling what is called a low-boy, a broad platform on wheels designed for hauling bulky or unwieldy loads that cannot readily be carried on ordinary motor trucks. On the low-boy was a large power shovel, or dragline, with the bucket suspended above and behind the rear of the low-boy. This vehicle and equipment were owned and operated by defendant D. B. Hill. B. A. Kimbrough, Hill's employee, was the driver. The second vehicle was a Hudson passenger car owned and driven by plaintiff J. B. Wilson, then head of the English department at State Teachers College, Conway. In addition to Wilson, the passengers in this car were his wife, plaintiff Lois Wilson, and plaintiff Mrs. Alice Smith. The third vehicle was a 1 1/2-ton Chevrolet truck heavily loaded with green lumber. It was owned and driven by defendant Julian Snider.

After the Diesel driver, Kimbrough, got on the Point Remove bridge he decided that he would stop his truck in order to be certain that a car coming toward him from the west would be able to pass him on the bridge. This was because his equipage was much wider than an ordinary automobile, extending somewhat across the center line onto the left half of the highway. Kimbrough testified that he slowed down gradually; Mr. and Mrs. Wilson and Mrs. Smith testified that he stopped suddenly, with no observable signals. Mr. Wilson according to uncontradicted testimony then brought his car to a quick stop, or very nearly to a stop, in an apparently safe position some five or ten feet behind the overhanging bucket of the steam shovel. Wilson's car was in good mechanical condition and he had it under proper control at the time. There is no serious contention by defendant Hill that Wilson was guilty of contributory negligence in stopping his car as he did. As Wilson brought his car to a stop, it was struck violently from behind by Snider's truck, and forced forward into the rear end of the low-boy and the power shovel. The effect might be described as accordion-like, as far as Wilson's car was concerned. Mr. and Mrs. Wilson both suffered substantial and painful injuries, and Mrs. Smith received injuries which were extremely serious and required long hospitalization and treatment.

The three injured persons brought action against Hill and Snider as joint defendants. Glenn Smith, husband of Mrs. Alice Smith, joined as a plaintiff also, asking damages for loss of the services, companionship and society of his wife and medical and hospital bills paid on her account. At the trial, after evidence as summarized above, plus undisputed evidence of Glenn Smith's expenditures for medical care and hospitalization for Mrs. Smith, the jury returned verdicts against defendant Hill in favor of Mr. Wilson for $ 1,250, Mrs. Wilson for $ 500, and Mrs. Smith for $ 12,000, and for defendant Hill in Mr. Smith's suit. A verdict returned for Mr. Wilson against Snider is not involved in this appeal. Judgment was rendered in accordance with the verdicts on November 29, 1948. On February 16, 1949, plaintiff Glenn Smith moved that the judgment against him be set aside. Six days later the Circuit Judge granted Smith's motion. This was during the same term of court at which the trial was held. Defendant Hill appeals on the grounds (1) that there should have been a directed verdict for him in all the cases because the evidence showed in him no negligence that was the proximate cause of the injuries proved and (2) that the Circuit Judge erroneously vacated the judgment in Hill's favor in the Glenn Smith case.

There was ample evidence offered to support the jury's finding that defendant's driver was negligent, and that his negligence was directed toward persons in the vehicles immediately behind him on the highway and others having interests in such vehicles or their occupants. The jury was entitled to believe the plaintiffs' testimony that Kimbrough stopped defendant's truck on the bridge suddenly and without observable signals, under circumstances creating an appreciable risk that vehicles immediately behind it might be piled up on it. If Wilson's car had not been struck from behind but rather, being driven by Wilson with due care, had run into the back of defendant's vehicle because Wilson could not stop it in time to avoid a collision after defendant's sudden stop, the jury could unquestionably have found that the defendant's negligence was the proximate cause of injuries suffered in the collision. The added fact here, which by defendant's claim makes the instant case different from the one supposed, is that Snider's truck, the third vehicle in line, is deemed to have been driven negligently. The argument is that Snider's negligence was a new and independent intervening cause, so unconnected with defendant's prior negligence as to be the sole proximate cause of plaintiffs' injuries.

Negligence in a tort defendant is one thing, and proximate causation as a relation between negligence and injury is a separate and different thing. Yet the two things shade into each other.

Actionable negligence itself is a relational concept. There is no such thing as "negligence in the air." Conduct without relation to others cannot be negligent; it becomes negligent only as it gives rise to an appreciable risk of injury to others. Acts done in a vacant field or by a lone traveler on a highway may not be negligent; the same acts done in a crowded city or in heavy highway traffic may well be negligent. The concept of actionable negligence is relational because an act is never negligent except in reference to, or toward, some person or legally protected interest. ^[1] In other words, a negligent act is one from which an ordinary prudent person in the actor's position -- in the same or similar circumstances -- would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner. The jury was clearly justified in finding that defendant, through his driver, was negligent toward the plaintiffs.

Defendant contends, however, that this negligence was not the proximate cause of plaintiffs' injuries. If after, or as, plaintiffs' car was brought to a stop behind defendant's truck, a third person had negligently fired a bullet into plaintiffs' car, or had while dynamiting a nearby stump thrown a boulder on plaintiffs' car, or had without stopping driven another car out of a sideroad into plaintiffs' car, the defendant's argument would be easier to sustain. If any such intervention had occurred, it would have been easy to find that it was truly an independent intervening act not aided or risked by defendant's negligent act. Such a wholly independent intervening act could be held to be the sole proximate cause of resultant injuries.

If on the other hand the intervening act be one the likelihood of which was definitely increased by the defendant's act, or one which in fact was caused by the defendant's act, it is not a superseding proximate cause of injuries incurred by reason of it.

"An intervening act of a human being . . . which is a normal response to the stimulus of a situation created by the actor's negligent conduct is not a superseding cause of harm to another which the actor's conduct is a substantial factor in bringing about." Restatement, Torts, § 443. "The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about if, (a) the actor at the time of his negligent conduct should have realized that a third person might so act, or (b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or (c) the intervening act is a normal response to a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent." Restatement, Torts, § 447. Compare Green, Rationale of Proximate Cause (1927), with Beale, The Proximate Consequences of an Act (1920), 33 Harvard L. Rev. 633. And see Prosser, Torts (1941) 352.

The Arkansas cases having to do with the effect of intervening forces upon proximate causation are collected and analyzed in (1947) 1 Ark. L. Rev. 148. Of them, defendant relies principally upon Gage v. Harvey, 66 Ark. 68, 48 S.W. 898, 43 L. R. A. 143, 74 Am. St. Rep. 70; Pittsburgh Reduction Co. v. Horton, 87 Ark. 576, 113 S.W. 647, 18 L. R. A., N. S. 905; Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 133 S.W. 816, 31 L. R. A., N. S. 1020; and Arkansas Power & Light Co. v. Marsh, 195 Ark. 1135, 115 S.W.2d 825.

In Gage v. Harvey, 66 Ark. 68, 48 S.W. 898, 43 L. R. A. 143, 74 Am. St. Rep. 70, it was held that a saloon keeper would not be liable for the loss of money forcibly taken from plaintiff's pockets by a thief while plaintiff was drunk. The theory of plaintiff's action was that the saloon keeper had caused him to get drunk by improperly...