Houston v. Adams
| Decision Date | 26 April 1965 |
| Docket Number | No. 5-3536,5-3536 |
| Citation | 239 Ark. 346,389 S.W.2d 872 |
| Parties | Frank HOUSTON et al., Appellants, v. Ernestine ADAMS et al., Appellees. |
| Court | Arkansas Supreme Court |
Cockrill, Laser, McGehee & Sharp, Little Rock, for appellants.
McMath, Leatherman, Woods & Youngdahl, Little Rock, for appellees.
This is an action by the appellees, husband and wife, for personal injuries, loss of consortium, and property damage resulting from a traffic collision at a street intersection in North Little Rock. The defendants, the owner and the driver of the truck that struck the Adams car, filed an answer denying negligence on their part and pleading what was in substance a second denial of negligence; that is, that the collision was the result of an unavoidable accident. The jury verdict was for the defendants. On the plaintiffs' motion the trial judge set the verdict aside and ordered a new trial. This appeal is from that order.
Both sides agree that it is the trial judge's duty to set aside a verdict which he considers to be against the preponderance of the evidence, Stanley v. Calico Rock Ice & Elec. Co., 212 Ark. 385, 205 S.W.2d 841, and that we reverse his ruling only if we find an abuse of discretion. Farmer v. Smith, 227 Ark. 638, 300 S.W.2d 937. It was formerly necessary for the appellant, in appealing from a motion granting a new trial, to file a stipulation consenting to judgment absolute if the order should be affirmed. Ark.Stat.Ann. §§ 27-2101 and 27-2150 (Repl.1962). This requirement was taken out of the statute by Act 547 of 1963, which permits the appeal without the stipulation. Ark.Stat.Ann. § 27-2101 (Supp.1963).
The defendants admit that the cause of the collision was the failure of the truckdriver, Perry Spence, to obey a stop sign at the intersection. They insist, however, that Spence's inability to stop was due to an unexpected and unavoidable failure of his brakes to function. Upon this theory they consider the verdict to have been supported by the weight of the evidence.
Spence testified that his service brake, operated by a pedal, had worked properly a few minutes earlier at a railroad crossing not far from the intersection where his truck ran into the Adams car. When Spence attempted to stop at the intersection his service brake proved to be completely useless because (as he later learned) a leak had suddenly occurred in the hydraulic system. Spence at once attempted to apply his hand brake, but even at a speed of less than 30 miles an hour he was traveling too fast for this brake to do more than slow the truck down before the collision took place in the intersection. There is no contention that Mrs. Adams, who was driving by herself, was negligent.
The defendants, in disclaiming negligence, contend (a) that Spence was not at fault in failing to anticipate an abrupt breakdown in the hydraulic system, and (b) that there is no statutory requirement that the hand brake be capable of stopping the vehicle.
Upon the first point there was an issue of fact. The statute requires that all vehicles be equipped with adequate brakes. Ark.Stat.Ann. § 75-724 (Supp.1963). A violation of this statute is evidence of negligence. Hence we have held that the jury may find negligence on the part of a driver whose brakes suddenly fail. Pitts v. Greene, 238 Ark. 438, 382 S.W.2d 904.
Point (b) is more difficult. Before the passage of Act 307 of 1959 the statute require that the service brake be adequate to stop a vehicle within 25 feet when traveling at 20 miles an hour and that the hand brake be adequate to stop it within 55 feet at that speed. Ark.Stat.Ann. § 75-724 (Repl.1962). The appellants rely heavily upon the fact that Act 307 of 1959 eliminated the express requirement that the hand brake be adequate to stop the vehicle within any stated distance. § 75-724 (Supp.1963).
Subsection (A)(1) of § 75-724, as reenacted by the 1959 act, is pertinent:
Subsection (A)(5) requires that the hand brake be capable of holding the vehicles stationary upon a grade. Subsection (B) requires that the service brake be capable of stopping the vehicle within a certain number of seconds at certain speeds.
The appellants insist that the basic requirement in Subsection (A)(1), that the brakes be adequate 'to control the movement of and to stop and hold such vehicle,' means only that the service brake be capable of stopping the vehicle and that the hand brake be capable of holding it stationary when parked. In harmony with this theory they produced an expert witness who testified that the hand brake on Spence's truck was designed only to hold the vehicle and that it 'had no stopping power at all.' Spence himself testified that the hand brake merely slowed the truck down just before the collision.
This argument overlooks the blunt requirement in the second sentence of Subsection (A)(1) that the two braking systems be so constructed that a failure of any one part of the operating mechanism shall not leave the vehicle without brakes on at least two wheels. Thus the appellants' insistence that the hand brake need have no stopping power is demonstrably fallacious, for under that theory every failure of the service brake would leave the driver of a moving vehicle with no brakes at all, contrary to the plain intent of the act. Two other courts, in construing statutes in all material respects identical with our 1959 act, have held that the hand brack must have stopping power. Paulson v. B. & L. Motor Freight, Inc., Ohio Mun.Ct., 145 N.E.2d 364; Rutz v. Anderson, 79 Wyo. 387, 334 P.2d 796.
We conclude that the proof, at least with respect to the hand brake, indicates negligence. Since there was no negligence on the part of Mrs. Adams the trial judge did not abuse his discretion in setting aside the verdict for the defendants. In view of the necessity for a new trial we must consider two additional points urged by the appellees.
First, it is insisted that upon the facts of this case the trial court should not give an instruction submitting the issue of...
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...instruction may be used when element of "surprise" is present, such as sudden and unexpected presence of ice) and Houston v. Adams, 239 Ark. 346, 389 S.W.2d 872, 875 (1965) (noting that instruction may be appropriate when driver with no prior history of coronary disease suffers a sudden hea......
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Smith v. Canevary
...Culver, 289 Ala. 724, 272 So.2d 236 (1973) (not error to give or refuse instruction, but better practice to refuse); Houston v. Adams, 239 Ark. 346, 389 S.W.2d 872 (1965) (instruction should not be given when question is whether one or more parties were guilty of negligence, but in exceptio......
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Woodhouse v. Johnson
...on 'unavoidable accident' and that the instruction should not be given in the ordinary case. * * * The Arkansas case of Houston v. Adams, 239 Ark. 346, 389 S.W.2d 872, discussed the Butigan case and at page 875 We are of the opinion that in a typical negligence case the position taken by th......
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Burdette v. Madison
...553 (1933). This court began to take a restrictive approach regarding use of the unavoidable accident doctrine in Houston v. Adams, 239 Ark. 346, 389 S.W.2d 872 (1965). In that case the parties admitted that the collision was caused by the failure of the truck driver to obey a stop sign, bu......