Hobbs-Western Co. v. Carmical
| Decision Date | 27 January 1936 |
| Docket Number | 4-4116 |
| Citation | 91 S.W.2d 605,192 Ark. 59 |
| Parties | HOBBS-WESTERN COMPANY v. CARMICAL |
| Court | Arkansas Supreme Court |
Appeal from Hempstead Circuit Court; Dexter Bush, Judge; affirmed.
Judgment affirmed.
W N. Ivie, Steve Carrigan and Duty & Duty, for appellants.
W S. Atkins and Ned Stewart, for appellee.
On the night of April 17, 1934, Glen Carmical, while driving an automobile, his left arm resting in the open window with his elbow extending outside, met a truck loaded with cross-ties coming from the opposite direction. As the vehicles were passing each other, Carmical's elbow came in contact with one of the cross-ties. The impact shattered the elbow resulting in the subsequent amputation of his arm. One, Archie Williams, was the driver of the truck, and John Westmoreland, an agent of Hobbs-Western Company, was riding in the cab with the driver and Charlie Hollis, these three being on the driver's seat. Carmical brought suit against Hobbs-Western Company, Archie Williams and John Westmoreland, and recovered a verdict against the three for damages for personal injury in the sum of $ 15,000.
We will consider in reverse order the grounds for reversal argued in appellants' brief.
It is insisted that the evidence failed to establish the acts of negligence alleged by the plaintiff (appellee). The negligence alleged and relied on at the trial was that the motor vehicle causing the injury when loaded was in excess of 80 inches in width, and that it was being driven without clearance lights contrary to the requirements of the traffic laws of this State which provide that every motor vehicle * * * having a width at any part in excess of 80 inches shall carry two clearance lights on the left side of such vehicle; one located at the front, and displaying a white light visible under normal atmospheric conditions from a distance of 500 feet to the front of the vehicle, and the other located at the rear of the vehicle and displaying a yellow or red light visible under like conditions from a distance of 500 feet to the rear of the vehicle." Acts 1927, p. 721, § 48.
The other ground of negligence pleaded was that the cross-ties were so loaded as to permit one of them to extend beyond the others which struck and injured the appellee. It is the contention of the appellants, that the truck was being driven on the proper side of the highway and that the injury was occasioned by the inattention and negligence of the appellee and not through any fault on their part; that he carelessly drove his car too near the rear end of the truck with his elbow negligently extended outside his automobile and that this was the proximate cause of his injury.
The testimony, viewed in the light most favorable to the appellee, is to the following effect: The highway, at the point where the injury occurred, consists of a pavement 14 feet wide with 3 feet shoulders on each side, these being about level with the pavement. Carmical was driving with a young lady companion seated with him on the front, or driver's, seat. He was traveling at about 15 or 20 miles an hour with his left arm resting in the open window on the driver's side, his elbow extending outward approximately 4 inches. He saw the lights of a motor vehicle approaching and drew to his right about even with the outer edge of the pavement. The truck was being driven at about the same rate of speed as the automobile. Carmical passed the front end of the vehicle in safety, but before the two had completely passed each other he suffered a blow to his elbow causing the injury complained of. Immediately after the vehicles had passed each other, the occupants of the truck stopped because of outcry which was heard and the sound of the breaking of glass. Carmical's automobile also stopped and the injured man was driven to the hospital by one of the occupants of the truck. An examination of the load on the truck disclosed the fact that one of the ties near the rear end protruded beyond the other ties and upon this was found blood which showed that it was this cross-tie which struck appellee's elbow. A police officer examined the scene of the accident and found shattered glass and blood on the highway about a foot and a half on the right hand side of the middle of the pavement. The truck was composed of a cab to which was attached a trailer. The trailer was fifteen feet, 10 inches long and it was upon this that the cross-ties were loaded, placed across the bed of the truck from front to rear. They extended back from the front end of the trailer about thirteen feet, no ties being loaded on the last two feet, ten inches of the bed of the truck. The cross-ties were ninety-six inches long, and the truck carried no clearance lights at the front or rear. While this is not negligence per se, it is evidence to be considered by the jury of that fact. Pollock v. Hamm, 177 Ark. 348, 6 S.W.2d 541. And this, together with other evidence, is sufficient to submit the question of the negligence of the operator of the truck to the jury.
As to the contributory negligence of the appellee urged by the appellants, but little need be said. This question was submitted to the jury under instructions which are admittedly correct declarations of law. The contention of appellants is based on the fact that appellee's elbow extended outside the window of his automobile about four inches. Automobiles, as to their width, are of standard make and we accept as a matter of common knowledge that under the evidence in this case appellee's elbow would not have extended beyond the outer edge of the running board of the automobile. Certainly, it cannot be said that the minds of all reasonable men would conclude that the conduct of the appellee was negligence.
The contention is also made that the court in instruction No. 2 given at the request of appellee, erred in construing the law relating to the duty to maintain clearance lights to apply to the truck involved, if it, "as loaded, " was in excess of 80 inches, and if it had no clearance lights, instructing the jury that it might consider this in passing on the question of the driver's negligence. The contention is that the court erred in thus interpreting the statute for the reason that the statute made no mention of the width of the load being conveyed on the vehicle, but specifically applies only to the vehicle itself and is therefore limited in its application to the width of the vehicle irrespective of the width of the load carried. It is argued that under the construction of the statute given by the court, one operating a truck would have to change the lights...
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