Hot Springs Street Railroad Company v. Hildreth

• Decision Date: 02 July 1904
• Citation: 82 S.W. 245,72 Ark. 572
• Parties: HOT SPRINGS STREET RAILROAD COMPANY v. HILDRETH
• Court: Arkansas Supreme Court

82 S.W. 245

72 Ark. 572

HOT SPRINGS STREET RAILROAD COMPANY v. HILDRETH

Supreme Court of Arkansas

July 2, 1904

Appeal from Garland Circuit Court, ALEXANDER M. DUFFIE, Judge

Reversed.

STATEMENT BY THE COURT.

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 9 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 arm pit. 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 fifteen 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 twenty-five 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 eight or ten 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 two and a half miles in twenty 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 is usual speed; that about the time he got within six or eight 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 eight or ten 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.

Judgment reversed and cause remanded.

E. W. Rector, for appellant.

It was error to charge that if the motorman failed either to slow up the car or ring his gong, it was negligence. 60 N.Y. 616; 60 N.Y.S. 477; 46 S.W. 116; 2 Am. Neg. Rep. 61. The rule that requires one who goes on a railroad track to look and listen applies to electric street railroads. 148 Ind. 54; 49 La.Ann. 1302. Instruction No. 14 asked by defendant should have been given. 13 So. 615; 23 So. 604; 63 N.Y.S. 315; 60 Id. 477; 82 N.W. 197; 52 A. 1090. The defendant is required to observe only ordinary care to avoid the injury. 62 Ark. 164; 64 Ark. 420. Before the plaintiff is entitled to recover, he must prove that the negligence of defendant caused the injury. 4 Am. Neg. Cas. 158; 2 Id. 61; 40 S.E. 239; 79 Ga. 463. The court has no right to tell the jury what facts constitute negligence. 34 Ga. 330; 18 S.E. 18; 22 S.E. 709; 25 S.E. 484; 34 S.E. 350; 30 S.E. 433; 61 Ark. 555; 49 Ark. 182; 52 Ark. 368; 54 Ark. 159, 122, 215; 62 Ark. 109.

Wood & Henderson, for appellee.

The rule in regard to persons going on a railroad track does not apply to street railways in this state. 69 Ark. 289. If facts are such that all reasonable men would reach the conclusion that a certain duty was required, then the failure to perform that duty would be negligence, and the court may so charge the jury. 144 U.S. 408; 117 F. 127; 79 F. 744; 139 U.S. 469; 64 Ark. 336.

OPINION

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, 114 Ga. 370, 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 three, four, seven and eleven 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 St. Louis, I. M. & S. Ry. Co. 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 as well settled, where the facts are undiputed, 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 & F. S. Rd. Co. 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 Shearm. & Redf. on Neg. § 53, it is said: "The law imposes duties upon men according to the circumstances in which they are called to act. And though the law defines the duty, the question whether the circumstances exist which impose that duty upon a particular person is one of fact." In other words, the law predicates negligence in each particular case upon the existence or nonexistence of a certain state of facts. Where there is a conflict in the evidence as to whether a given state of facts exists, the jury must settle that conflict, and find certain facts established as true, before the conclusion of law follows.

It is undoubtedly the rule that where, upon certain facts being established, all prudent and reasonable men would reach the same conclusion as to the duty required, then the failure to exercise ordinary care to discharge that duty would be actionable negligence, and the court should always so declare. This court has often approved instructions in the form complained of leaving the jury to find what facts are established, where the facts are disputed, before they are authorized to draw the conclusion of negligence, but declaring that, if certain facts are established, culpable or actionable negligence follows, as a conclusion of law. St. Louis, I. M. & S. Ry. Co. v. Baker, 67 Ark. 531, 55 S.W. 941; St. Louis, I. M. & S. Ry. Co v. Person, 49 Ark. 182, 4 S.W....