Hot Springs St. Ry. Co. v. Hildreth

• Decision Date: 02 July 1904
• Citation: 82 S.W. 245
• Parties: HOT SPRINGS ST. RY. CO. v. HILDRETH.
• Court: Arkansas Supreme Court

Page 245

82 S.W. 245

HOT SPRINGS ST. RY. CO. v. HILDRETH.

Supreme Court of Arkansas.

July 2, 1904.

Appeal from Circuit Court, Garland County; Alexander M. Duffie, Judge.

Action by Seg Hildreth against the Hot Springs Street Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

This is a suit to recover damages from the appellant for personal injuries to appellee in a collision between appellant's car and the wagon in which appellee was riding when the injuries occurred. The company denied negligence, and set up contributory negligence on the part of appellee and the driver of the wagon.

The facts, stated most strongly for appellee, are as follows: Appellee, a boy nine years of age, was on a delivery wagon for a ride with the driver, and while the wagon was being driven by the driver along Ouachita avenue, one of the streets of the city of Hot Springs, upon which the street car company had a double track, a car approaching from the rear overtook the wagon, collided with it, and threw appellee to the ground under the wheel of the wagon, and inflicted on him severe and permanent personal injuries. His arm was fractured near the shoulder, his wrist of the same arm was crushed, one of the fingers of his hand was mashed off, the arm from his hand almost to the elbow was mashed and bruised to the extent that the flesh sloughed off of the back of the hand up to above the wrist joint, and there was a deep, lacerated wound under the arm about the armpit. The arm and hand were left permanently deformed, and their use almost completely destroyed. The appellee, at the time, had no control of the driver or the team. The street on which the collision occurred was narrow, the space on either side of the street car track being about 15 feet, and was, at the place of collision, very much used by vehicles. The wagon on which appellee was riding came on to Ouachita avenue from a cross street, and the driver took a position near the center of the street, and near the track on which the car was running, and drove along the street parallel to the track, and so close to it that a car could not pass the wagon without striking it. The driver continued to drive along about the same distance from the track for a distance of 75 or 100 yards after coming on to Ouachita avenue, and until the collision. While so driving he did not look back to see whether any car was approaching until attracted by the noise of the running of the car, when the car was within 25 feet of the wagon, and so close that he could not get out of the way of the car before the collision. The driver, immediately after seeing the car, turned his horses to the left in an effort to pull away from the track, but before he could do so the car struck the back end of the wagon and knocked it to the left from the track, thereby throwing the front of the wagon to the right, and the horses partially across the track. The motorman did not sound the gong at all, and made no effort to check the speed of his car until about the time the car struck the back end of the wagon, when he then put on the brake by turning the crank, and stopped the car within 8 or 10 feet, and as quick as he could. The driver and appellee were sitting on the same seat in the front of the wagon, with their backs to the car, and the motorman was all the time on the front end of the car looking down the track in front of him and towards the wagon. The car was going at its usual rate of speed, and the schedule time required them to make a trip of 2½ miles in 20 minutes, including all stops.

On the other hand, the motorman stated that he saw the wagon, and gave ample warning by ringing his gong; that the wagon, as it was going, was out of danger from the car, and that, if it had continued along the same distance from the track, the car would have passed without striking the wagon; that he took up the slack in his brake chain, and had the car in condition that he could stop at once; that he was running the car at its usual speed; that about the time he got within 6 or 8 feet of the wagon the horses turned suddenly across the track in front of the car, and he then stopped as quick as he could within 8 or 10 feet; that he had instructions to always sound the gong when wagons were on or near the track in front of the cars; that he sounded the gong in this case in order to apprise the driver that the car was coming, because he considered it his duty to do so under his instructions; that he did all he could to prevent the collision after he discovered the wagon in a dangerous position. There was other evidence which corroborated the statement of the motorman.

E. W. Rector, for appellant. Wood & Henderson, for appellee.

WOOD, J. (after stating the facts).

The Supreme Court of Georgia seems to have committed itself to the doctrine that trial courts have no right to tell the jury what constitutes negligence except in cases "where the law expressly requires or forbids an act to be done, or declares its performance or nonperformance to be negligence." Mayor, etc., of Milledgeville v. Wood, 40 S. E. 239. In the above case the court says: "We have seen that in this state negligence is a question exclusively for the jury, and that the law so carefully guards the province of the jury in this respect that even the court cannot either directly or indirectly tell the jury what facts will or will not constitute negligence." This authority is cited by appellant for the condemnation of charges 3, 4, 7, and 11 given at the instance of appellee, in which the court tells the jury that, if certain facts with reference to appellant's conduct in the running of its car are established, the appellant is guilty of negligence. This court has not adopted the broad rule announced by the Supreme Court of Georgia. In Railway v. Spearman, 64 Ark. 332, 42 S. W. 406, we said: "The law fixes the standard for the conduct of reasonable, prudent, and cautious men under the circumstances of a case of this kind, and it is the duty of the court to instruct the jury as to the law, and the duty of the jury to regard the instructions of the court, and take them as the law of the case. Were it otherwise, every jury would be at liberty to fix its own standard of negligence or ordinary care, without regard to the instructions of the court as to what might be diligence or negligence." In St. Louis & I. M. & S. Ry. Co. v. Martin, 61 Ark. 549, 33 S. W. 1070, we said: "It is equally well settled, where the facts are undisputed, and there could not, in reason and fairness, be any difference of opinion as to the conclusion to be drawn from them, that the question of negligence or contributory negligence is one of law." See cases there cited. In Little Rock, etc., Ry. v. Duffey, 35 Ark. 602, this court said: "The question of negligence is a mixed one of law and fact, in the determination of which is to be considered whether an act has been done or omitted, and whether, also, the doing or omission of it was a breach of legal duty."

In Shear. & Red. on...