Holcomb v. Gilbraith
| Decision Date | 23 September 1974 |
| Docket Number | No. 74-96,74-96 |
| Parties | Loamma HOLCOMB, By her father and next friend, Charles Holcomb, Appellant, v. Patsy GILBRAITH, Appellee. |
| Court | Arkansas Supreme Court |
Estes, Storey & Estes, by Peter G. Estes, Jr., Fayetteville, for appellant.
Putman, Davis & Bassett, by W. B. Putman, Fayetteville, for appellee.
Appellant Loamma Holcomb, age 14, was struck by an automobile driven by appellee Patsy Gilbraith while crossing Highway 59. The jury found the issues in favor of appellee and appellant through her father brings this appeal. For reversal appellant contends that the trial court erred in giving AMI 614 (on sudden emergency); in refusing AMI 605 (); and in modifying Ark.Stat.Ann. § 75--628(d) (Repl. 1957).
The proof shows that all parties were acquainted with each other and that appellee knew that appellant was in the habit of crossing the highway from her home to go to her grandparents' home on the other side of the highway. All witnesses generally agree that the point where appellant was crossing the highway is blocked from the view of a north bound motorist until the motorist gets within 400 or 500 feet of the place involved.
Appellant testified that before going across the road she had looked both to the south and the north and that she did not see any vehicles. She says that she was just angling across the road.
Appellee testified that she was driving a 1970 Model Ford LTD. The car was in good shape. She had had the front end aligned and the wheels balanced only two days before. Appellee testified that when she first observed appellant, the latter was walking on the right-hand shoulder of the road. When appellee was within 100 feet of appellant, appellant made a sudden turn onto the highway. Appellee then applied her brakes, blew her horn and pulled to the left. She testified that at first she thought she missed appellant, but she then realized that the appellant was hit by the right front fender. Appellee says that when she first saw appellant she took her foot off the accelerator and pulled to the left. On cross-examination appellee described appellant as just walking along the highway with her head down--appellant didn't seem to be very alert.
The skidding distance of appellee's car varied with the witnesses. One witness, who stepped off the distance estimated it to be 150 to 160 feet. Appellant's father placed the skid marks at 230 feet.
POINT I. We find no merit in appellant's contention that the instruction on sudden emergency should not have been given. There was proof in the record to the effect that appellant while walking along the road suddenly turned into the path of appellee's automobile. See Johnson v. Nelson, 242 Ark. 10, 411 S.W.2d 661 (1967).
POINT II. The trial court refused to give appellant's requested instruction No. 1 (AMI 605) which reads as follows:
To sustain the action of the trial court, appellee argues:
In discussing whether a child should be held to the standard of care of an adult in negligence cases, the annotator in 77 A.L.R.2d at page 932 § 7 states the matter in this language:
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Thomas v. Newman, 76-284
...But we have held that AMI, Civil, 605 should have been given when a minor between 14 and 15 years of age was involved. Holcomb v. Gilbraith, 257 Ark. 32, 513 S.W.2d 796. The failure of the driver to sound his horn, or to take earlier diversionary action, or to sooner apply his brakes are si......
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Diemer v. Dischler, 92-1253
...and skidded 108 feet to the point of impact. Another case involving sudden movement into the path of a vehicle is Holcomb v. Gilbraith, 257 Ark. 32, 513 S.W.2d 796 (1974). There, a teenage pedestrian, whom the appellee had seen walking along a highway, made a sudden turn into the highway wh......