Hughey v. Lennox

• Citation: 219 S.W. 323,142 Ark. 593
• Decision Date: 15 March 1920
• Docket Number: 246
• Parties: HUGHEY v. LENNOX
• Court: Supreme Court of Arkansas

219 S.W. 323

142 Ark. 593

HUGHEY v. LENNOX

No. 246

Supreme Court of Arkansas

March 15, 1920

Appeal from Crawford Circuit Court; James Cochran, Judge; modified and affirmed.

Judgment affirmed.

Sam R Chew for appellants; T. P. Winchester, of counsel.

1. The verdict on the first count is wholly without legal testimony to sustain it and the burden was on appellee. The verdict was the result of passion or prejudice. Conscious suffering for any length of time was not proven. 68 Ark. 1.

2. If the proof shows conscious pain and suffering the verdict is excessive.

3. The court erred in giving instruction No. 4 and in refusing appellant's instruction No. 5. 69 Ark. 134; 82 Id. 499; 96 Id. 206.

4. The verdict on the second count is also excessive. 39 Ark. 491; 33 Id. 350; 80 Id. 454; Ib. 74; 90 Id. 274.

5. The father of the child was guilty of contributory negligence in letting the child go on the highway unattended by some discreet person. 68 Ark. 1; 77 Id. 398; 72 Id. 1; 36 Id. 41; 5 Thompson on Negl § 6310, p. 769. The negligence of the father was not properly submitted to the jury.

6. The testimony of L. H. Kibler was not competent. 87 Ark. 243; 98 Id. 352; 100 Id. 518.

7. The evidence of Hughey before the coroner's jury was incompetent.

8. The verdict is contrary to and against the weight of the evidence and contrary to the law. 56 Ark. 465.

9. Instruction 3 given by the court was error.

Starbird & Starbird, for appellee.

1. The verdict is supported by the evidence as to conscious pain and suffering. 96 Ark. 105; 88 Id. 164. The weight and credibility of the testimony was for the jury. 88 Ark. 200; 112 Id. 269; 92 Id. 569.

2. The verdict is not excessive. 84 Ark. 241; 103 Id. 361; 165 S.W. 627.

3. There was no error in the instructions given or refused. 125 Ark. 519.

4. Larger verdicts than this have been often sustained. 99 Ark 422; 105 Id. 347; 102 Id. 422; 135 Id. 56; 33 Id. 350.

5. The objections to the admission of the testimony by appellants are not sustained by the law.

OPINION

MCCULLOCH, C. J.

J. M. Hughey, one of the appellants in this case, ran down and killed Tressa Lennox, a little girl between three and four years of age, while driving an automobile along a public road in Crawford County. The car belonged to J. W. Hansel, the other appellant in the case, and Hughey was driving the car as Hansel's agent. This is an action instituted by appellee as administrator of the estate of Tressa Lennox to recover on two causes of action; one for the benefit of the estate of the decedent, and the other for the benefit of the parents of said decedent.

It is alleged in the complaint that at the time of the injury the child was traveling a footpath along the side of the road in company with another child about her own age and another girl about twelve years of age, and that Hughey negligently ran the car against this child and caused her death. The answer contained appropriate denials of the allegations of the complaint. There was a trial of the issues before a jury, which resulted in a verdict in favor of the plaintiff, assessing damages on the first count for the benefit of the estate of the decedent in the sum of $ 1,000, and on the other count in the sum of $ 2,000.

The following state of facts is deducible from the testimony, viewing it in the light most favorable to appellee:

The child, Tressa Lennox, lived with her parents near the railroad station of Shibley, in Crawford County. There was a store at or near the station operated by a Mr. Brewer. Soon after the noon hour Tressa Lennox was sent to Brewer's store, a short distance from her home, to make a small purchase for her father. She was accompanied by Margaret Conn, a very intelligent girl, twelve years of age, and her little brother, who was about the age of Tressa. The three, returning from the store, after having made the purchase, were walking along a footpath on the north side of the public road, Margaret holding one of the hands of each of the children. They were going westward along this footpath, and Hughey came along behind them driving the automobile and when he came within a distance of about 58 feet of the children the machine suddenly left the road and went over to the footpath and ran against Tressa Lennox and killed her. The other two children escaped uninjured. Margaret Conn testified that she had both of the children by the hand and that she succeeded in rescuing her little brother from the danger, but that the car struck Tressa and knocked her loose from her grasp before she could get her out of the way of the machine. The car struck the child violently and knocked her a considerable distance. Margaret Conn ran to the child after the car had passed over her and picked her up but appellant Hughey stopped the car and got out and took the child from Margaret's arms and carried her back up to Brewer's store.

The testimony with respect to probable suffering experienced by the child as the result of the blow came from Margaret Conn, so far as appellee's side of the controversy is concerned, who testified that when she picked the child up she was crying and that she continued crying until after Mr. Hughey came and took her out of the witness' arms. The child died about the time that Hughey reached the store and laid her down on the floor. It was proved by several witnesses that the car left the roadway and moved along the footpath and that the child was struck while she was walking along or standing in the footpath. Mr. Brewer was standing on the porch at his store when the injury occurred, and he testified that he was looking at the car and the children at the time, and that he saw the car dart out suddenly from the road over to the path and that the car was running at a high rate of speed.

There was testimony adduced tending to show that Hughey was an inexperienced driver. At any rate we think that the testimony was sufficient to warrant the jury in finding that Hughey was guilty of negligence in operating the car, and that he is responsible for the injury inflicted.

Hansel is liable under the doctrine of respondeat superior, Hughey being his servant and agent in operating the car.

It is contended in the first place that the court erred in refusing to submit to the jury the question of contributory negligence on the part of the parents in permitting the child to travel along the public highway where the proof shows automobiles frequently move. Learned counsel for appellants rely on the case of St. Louis, Iron Mountain & Southern Railway Company v. Dawson, 68 Ark. 1, 56 S.W. 46, where it was held that parents suing for injuries to a child of tender age were barred by their own negligence in permitting the child to travel unaccompanied along a dangerous way and receive injuries as the proximate result of such negligence.

We do not think, however, that there was, in the present case, any evidence of contributory negligence sufficient to warrant a submission of that issue to the jury. There was testimony to the effect that a great many automobiles moved along this highway. Some of the witnesses expressed the opinion that they averaged more than fifty a day, but this little girl was not traveling alone. She was accompanied by another girl twelve years of age, who shows by her testimony that she is very intelligent and is capable of looking after the safety of her little companions. There was nothing especially dangerous about the situation which would have warranted the jury in finding that under those circumstances the parents were guilty of negligence in allowing the child to pursue such a short journey to the store. There was no occasion to cross the road, and the proof shows that there was a well defined footpath along the fence on the north side of the road, and that there was a space of about twelve feet between this footpath and the driveway. Certainly it is not negligence for an intelligent girl of twelve years to pursue a journey of that kind alone,...