Itzkowitz v. P. H. Ruebel & Co

• Decision Date: 30 April 1923
• Docket Number: 335
• Citation: 250 S.W. 535,158 Ark. 454
• Parties: ITZKOWITZ v. P. H. RUEBEL & CO
• Court: Arkansas Supreme Court

250 S.W. 535

158 Ark. 454

ITZKOWITZ v. P. H. RUEBEL & CO

No. 335

Supreme Court of Arkansas

April 30, 1923

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge reversed.

Judgment reversed and cause remanded.

Mehaffy Donham & Mehaffy, for appellant.

The court erred in modifying appellant's instruction No. 2 and in giving appellee's instruction numbered 1, which wrongfully imputed negligence of driver of car in which appellant was riding to her. 112 Ark. 421; 123 Ark. 550; 126 Ark. 389; 136 Ark. 31. Appellee's instruction numbered 4 was also erroneous, telling the jury that, if the injury resulted from an accident, appellant could not recover. Court erred also in admitting the testimony of officer Witt relating his conversation with the driver of the Levin car which was not part of the res gestae. 137 Ark. 107; 61 Ark. 52; 72 Ark. 572; 66 Ark. 494; 105 Ark. 247; 77 Ark. 599; 119 Ark. 36.

McConnell & Henderson, for appellees.

Negligence of appellant's driver was imputable to her. Cases cited by appellant reviewed and distinguished. 136 Ark. 272; 102 Ark. 355; 147 Ark. 152; 72 Ark. 572; 159 F. 10; 229 S.W. 169; 186 P. 160; 174 P. 817; 88 S. E. (Va.) 309. The appellant was guilty of negligence. 179 F. 577; 216 F. 503; 193 Mass. 223, 118 Am. St. Rep. 502; 72 Ark. 572. No presumption of negligence from the mere happening of the accident. 97 Ark. 469. No proof of negligence on part of appellee. 70 P. 346. Statement of appellant's driver was part of the res gestae. 85 Ark. 479; 132 Ark. 551, 10 R. C. L. 974, 976. Neither did appellant object to the same statement of the driver testified to by other witnesses than officer Witt. Admissible to contradict testimony of driver also.

OPINION

MCCULLOCH, C. J.

The plaintiff, Sarah Itzkowitz, instituted this action in the circuit court of Pulaski County to recover damages for personal injuries sustained as the result of a collision between an automobile owned by defendant and driven by one of its servants and another car in which plaintiff was riding. It is charged in the complaint that the collision occurred by reason of the negligence of defendant's driver in operating the car. There was a denial of the charge of negligence on the part of defendant's driver, and the answer contained an allegation that the collision was caused by negligence of the driver of the car in which plaintiff was riding. The verdict was in favor of the defendant, and the plaintiff has prosecuted an appeal.

It is undisputed that the collision of the two cars mentioned occurred, and that plaintiff received substantial injuries. It is unnecessary to inquire on this appeal concerning the extent of the plaintiff's injuries.

The collision occurred on June 28, 1921, about 2 o'clock in the afternoon, in the city of Little Rock, on East Capitol Avenue, at the intersection on the south side of that street with the alley which runs north and south between Main and Scott streets.

The plaintiff was a saleswoman in the dry goods establishment of the Levin Dry Goods Company, on Center Street, between Fifth and Sixth, and about 2 o'clock in the afternoon she became slightly ill, and the manager of the establishment, Mr. Heiman, instructed the driver of the delivery car to take the plaintiff home, and she was en route home when the collision occurred, the direct route to her house being eastward on Capitol Avenue.

The car in which plaintiff rode was a Ford truck with only one seat, and used as a delivery car. As the car was being driven along East Capitol Avenue, going toward the east, a six-cylinder passenger car, owned by the defendant and driven by one of its employees, came out of the mouth of the alley, headed north, and the two cars collided. The point of collision was at the mouth of the alley, and the right front end of defendant's car collided with the right rear wheel of the car in which plaintiff was riding. The witnesses all state that the right front spring of defendant's car hooked the rear right-hand wheel of the Levin car. There is a sharp conflict in the testimony as to the speed each car was making at the time. The driver of the Levin car testified that the car coming out of the alley was running at a speed of above fifteen miles an hour, and that he was driving the Levin car at a rate of speed less than that. The driver of defendant's car testified that the Levin car was running fifteen or sixteen miles an hour, and that his car was moving at a very slow speed, and that he blew the horn before he reached the mouth of the alley, when the Levin car was twenty-five feet or more distant. In other words, there is a sharp conflict in the testimony as to the cause of the injuries--as to which of the two drivers was negligent.

The driver of the Levin car and the plaintiff herself both testified that the Levin car was being driven at a very moderate speed on the right side of the street, a slight distance from the rear end of the cars parked at the mouth of the alley; that, as defendant's car came out of the alley at considerable speed, no signals were given, and that defendant's car ran into the rear wheel of the Levin car.

The driver of defendant's car testified that, after he blew the horn, the Levin car continued to come at a rapid rate of speed; that the driver seemed to be stooping down, looking at or through his wheel, and that he suddenly swerved the car to the right and ran into defendant's car, hooking the right rear wheel over the right front spring.

The defendant introduced Police Officer Witt, who was on duty at the time at Main Street and Capitol Avenue, and the witness testified that he heard the noise of the collision and ran up to the place where it occurred, and saw people removing plaintiff from the car. He testified that he asked the driver why he did not stop, and that the driver replied, "My brakes would not work." He said he then asked the boy what was the matter with them, and the boy replied, "I don't know, they would not work." This testimony was introduced over the objection of the plaintiff, and exceptions were duly saved.

It is contended by counsel for appellee that the undisputed evidence shows that there was no negligence on the part of defendant's driver, and that for this reason the judgment ought to be affirmed, regardless of any error in the proceedings. We cannot agree with counsel in this contention for there is abundant evidence to sustain a finding of negligence on the part of defendant's driver if the testimony of the witnesses introduced by plaintiff is true. They show that defendant's car came out of the alley at a speed of about fifteen miles an hour, and that no signal of its approach was given. It is shown that the traffic on East Capitol Avenue at this point is very considerable during all hours of the day, and, this being true, the jury would have been warranted in finding that the driver of defendant's car was negligent. The fact that the point of collision between the two cars was at the right front side of defendant's car and the rear wheel of the Levin car is a very strong circumstance tending to show that the collision resulted from negligence of the driver of defendant's car, for it shows that when the collision occurred the Levin car had nearly passed the mouth of the alley, and if defendant's driver was moving the car as slowly as he claims he was, he could have stopped the car before it struck the other passing car. In other words, the physical facts in the case tend to show that the fault was with the driver of defendant's car, and, in order to escape the force of these facts, the defendant undertook to show...