James v. South Central Stages

• Decision Date: 01 April 1958
• Docket Number: Civ. A. No. 415.
• Citation: James v. South Central Stages, 160 F.Supp. 288 (W.D. Ark. 1958)
• Parties: Benjamin JAMES and Hazel M. James, Plaintiffs, v. SOUTH CENTRAL STAGES, Inc., and Harry B. Smith, Defendants.
• Court: U.S. District Court — Western District of Arkansas

160 F. Supp. 288

Benjamin JAMES and Hazel M. James, Plaintiffs, v. SOUTH CENTRAL STAGES, Inc., and Harry B. Smith, Defendants.

Civ. A. No. 415.

United States District Court W. D. Arkansas, Harrison Division.

April 1, 1958.

Thomas B. Tinnon, Mountain Home, Ark., for plaintiffs.

Crouch, Jones & Blair, Springdale, Ark., Fitton & Adams, Harrison, Ark., for defendants.

JOHN E. MILLER, District Judge.

Statement

On March 10, 1958, this case was tried to the Court without a jury. Prior to the trial of the case, the plaintiff, Benjamin James, by permission of the Court was permitted to take a nonsuit, and the complaint was dismissed as to said plaintiff. The case proceeded to trial upon the claim of the plaintiff, Hazel M. James, and at the conclusion of the trial the Court took the case under advisement pending receipt of briefs from the parties in support of their contentions.

The briefs of the parties have been received, and the Court, after considering the pleadings, evidence, and briefs of the parties, now makes and files herein its Findings of Fact and Conclusions of Law, separately stated.

Findings of Fact

1.

The plaintiff, Hazel M. James, is a citizen of Arkansas and resides in Baxter County, Arkansas. The defendant, South Central Stages, Inc., is a Missouri corporation, and the defendant, Harry B. Smith, is a citizen and resident of the State of Missouri. The matter in controversy, exclusive of interest and costs, exceeds the sum of $3,000.

2.

At the time of the collision involved in this action the defendant, South Central Stages, Inc., was engaged in the business of operating a bus service as a common carrier between Springfield, Missouri, and Mountain Home, Arkansas, and intermediate points.

3.

The collision involved in this litigation occurred at approximately 11:30 a. m. on July 5, 1956, near the village of Three Brothers in Baxter County, Arkansas. At that time and place the plaintiff, Hazel M. James, was driving her automobile in a generally southerly direction on Highway 5. She was making a trip to the Turnbo Store which is located on the east side of Highway 5. It was plaintiff's intention to drive her vehicle slightly past the front of the store and make a U-turn to the left or east and drive in front of the store with her automobile heading back in a northerly direction.

The plaintiff was driving on the highway at a speed of 20 to 25 miles per hour. When she was about 100 yards from the store she looked in her rear-view mirror, and saw no traffic approaching from the rear. She continued down the highway, and when she reached a point approximately even with the Turnbo Store, she drove her automobile to the right onto the west shoulder of the highway and came to a momentary stop. She then turned her automobile across the highway toward the east in proceeding to the Turnbo Store, and when her automobile reached a point in the west lane of the highway, said automobile being headed in a west-east direction facing east, a bus owned by the defendant, South Central Stages, Inc., and being driven by the defendant, Harry B. Smith, struck the left side of plaintiff's automobile at a point directly behind the left door of the automobile (it was a 2-door automobile).

At the time plaintiff made her turn across the highway she did not give a signal of her intention to turn, and she did not see the defendant's bus until immediately before the collision.

4.

The defendant, Harry B. Smith, was driving the bus in a southerly direction on Highway 5. When he was about 400 yards north of the store, he noticed plaintiff's automobile which at that time was about 75 to 100 yards from the store and was proceeding in a southerly direction. He had been driving at a speed of approximately 40 to 45 miles per hour, but as he approached the store he slowed his speed to about 35 miles per hour to enable him to observe the Turnbo Store to ascertain whether a flag was out indicating that passengers wished to board the bus at the store.

In the meantime, plaintiff had pulled her automobile onto the right or west shoulder of the highway and had momentarily stopped, and defendant, seeing no flag at the store and not expecting plaintiff to drive her automobile back on the highway, continued down the highway. When the bus reached a point near plaintiff's automobile, the automobile was suddenly driven across the highway in the path of the bus, and the bus driver, Harry B. Smith, was unable to avoid the collision. He did attempt to pull the bus to the right or west but could not do so in time to avoid colliding with plaintiff's automobile.

The impact occurred in the west lane of traffic and was between the front of the bus and the left side of plaintiff's automobile. After the impact the bus traveled about 20 feet and stopped on the west shoulder. The rear end of plaintiff's automobile was pushed about six feet to the south.

There was a feed store on the west side of the highway in the vicinity of the place where plaintiff's automobile was stopped, and it was customary for vehicles to be parked on that side of the highway. Defendant, Harry B. Smith, did not think it unusual for plaintiff's automobile to be stopped on the west side of the highway at that point, and had no reason to anticipate that she was intending to drive across the highway.

5.

The plaintiff is 63 years of age. As a result of the collision she sustained certain personal injuries, medical expenses, and other damages.

Discussion

In the case of Kisor v. Tulsa Rendering Co., D.C.W.D.Ark., 113 F. Supp. 10, this Court set out the general rules governing automobile accidents, citing the pertinent Arkansas decisions. For present purposes, suffice it to say that the substantive law of Arkansas governs; that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence that she received injuries which were proximately caused by negligence on the part of the defendant, Harry B. Smith, and the burden of proof is on the defendants to prove that the plaintiff was guilty of contributory negligence or negligence which was the sole proximate cause of the collision.

Both the plaintiff, Hazel M. James, and the defendant, Harry B. Smith, had a duty to keep a lookout for other vehicles upon the highway and to keep their vehicles under such control as to be able to check the speed or stop them, if necessary, to avoid injury to others if and when danger was apparent. It was also the duty of both parties to drive their vehicles at a reasonable rate of speed under the conditions then existing.

The plaintiff contends that the defendant, Harry B. Smith, was driving at an excessive rate of speed under the circumstances, was not keeping a proper lookout, and did not have his vehicle under proper control. The evidence, however, does not support plaintiff's contentions. Smith was...