Langston v. Moseley

• Decision Date: 08 March 1954
• Docket Number: No. 5-301,5-301
• Citation: 223 Ark. 250,265 S.W.2d 697
• Parties: LANGSTON v. MOSELEY.
• Court: Arkansas Supreme Court

Page 697

265 S.W.2d 697

223 Ark. 250

LANGSTON v. MOSELEY.

No. 5-301.

Supreme Court of Arkansas.

March 8, 1954.

Dissenting Opinion March 15, 1954.

Bruce Ivy, Osceola, Harrison & Harrison, Blytheville, for appellant.

A. F. Barham and Henry J. Swift, Osceola, for appellee.

GRIFFIN SMITH, Chief Justice.

Roy Langston, Paul Burns, and Belford Scott were sued to compensate personal injuries sustained by Henry Moseley. The court directed a verdict against Burns and Scott and the jury assessed damages at $3,000. From this phase of the controversy there is no appeal. Langston's negligence was submitted to the fact-finders and a verdict in Moseley's favor for $3,000 was returned. From a judgment on the verdict comes this appeal.

Langston was driving across a street intersection in Osceola and had passed the line used by pedestrians when he realized that the red signal light was against him. In an effort to mend the situation he backed five or six feet and in doing so drove against and under the front bumper of Burns' car, locking them. Burns endeavored to disengage the cars. According to Langston, Burns was 'raising up and down on the bumpers' when he (Langston) got out of his car. He started to the rear, but testified that he did not go all the way back. On the contrary, he acted on Burns' suggestion to back his car slightly to relieve the tension. Langston says that it was while he was undertaking to do this that Scott negligently ran into his car.

Henry Moseley's version of the transaction resulting in his injury is that he was standing not far from the interlocked cars when Burns undertook to disengage them. Langston was standing on the traffic side of the automobiles, while Burns was on the right, behind the Langston car. Burns called him to assist in separating the bumpers. Moseley walked in front of Langston's car and Langston, as he followed, said, 'You get up here'--indicating the bumpers. Burns was on the opposite side when Moseley was told where to go. Moseley was quite certain that Langston told him there wasn't any danger. While Moseley, assisted by Burns, was on the bumpers shaking them, Scott hit the Langston car, the impact knocking Mosely to the paving. Dr. C. W. Silverblatt testified that the injury was considered serious, involving an ankle joint. Treatment required the application of a plaster cast, which was kept in place for about eight weeks.

Langston was positive that he did not tell Moseley to get on the bumper, and that he gave no assurance of safety, but this was contradicted and presented a factual issue for the jury's determination.

There was testimony that Moseley, when he responded to the request for assistance, was on the street or traffic side of the two cars, while Burns was on the opposite side. Burns admitted calling to Moseley, but did not know whether Langston had asked for help. Traffic created considerable noise and it was possible for Langston to have called without attracting the attention of this witness. In several respects Burns contradicted statements made by Langston.

We think the court's instructions--complained of by appellant--were proper in the circumstances. Langston was not entitled to a directed verdict. The jury was told that if it found that Burns and Langston, in their endeavor to disengage the bumpers, were engaged in a joint enterprise, and that if in furtherance of this purpose either of them asked for Moseley's assistance, then, if these contentions should be established, and if Moseley were placed in danger, and the defendants Burns and Langston did not use ordinary care to warn him of peril a reasonably prudent person would have apprehended, Langston would be liable. Appellant thinks the instructions were inconsistent and confusing, but we do not find them open to this objection. Neither may error be predicated upon the court's action in explaining to the jury why separate verdicts should be given.

It was for the jury to say whether Langston, whose act in backing his car into Burns' bumper and impeding traffic, cast upon this defendant the duty of keeping a lookout. It is conceded that this was not done. The fact that Scott violated a traffic regulation by imprudently driving on the wrong side of the street to avoid injury to himself or to others when suddenly confronted with a speeding car was, of course, a circumstance to be considered in ascertaining whether there was want of prudence in placing appellee in a precarious position without reckoning traffic dangers.

It has long been the rule that where the negligence of two or more persons concurs to produce harm, either is liable to the injured person. Missouri Pacific Railroad Company v. Riley, 185 Ark. 699, 49 S.W.2d 397. We think there was substantial evidence that Burns and Langston were engaged in a joint adventure or joint enterprise, and that the jury had a right to consider the interest of each and the attending requirement of care.

A person responsible for only one of several causes combining to produce injury is liable if, without his negligent act, injury would not have attended. Phillips Petroleum Company v. Berry, 188 Ark. 431, 65 S.W.2d 533.

Affirmed.

GEORGE ROSE SMITH, WARD, and ROBINSON, JJ., dissent.

McFADDIN, J., concurs.

WARD, Justice (dissenting).

I cannot agree with the majority opinion because it ignores pertinent facts and recognized principles of law. Essentially the fact situation is this: Appellant asked appellee to help disengage the rear bumper of his car which was then sitting on the proper side of the street. While appellee was so engaged Scott drove his car [not from the rear of appellant's car where danger might have been expected] from across the street and into appellant's car, injuring appellee. This presents a typical situation calling for a discussion of 'proximate cause' and 'efficient intervening cause', neither of which were discussed in the majority opinion. The majority opinion erroneously assumes that the negligence of appellant and Scott were both concurrent and efficient.

With no exceptions to the contrary, the reports of this state and other states are replete with enunciations of the law of negligence which preclude a recovery here. In the early case of Martin v. Railway Company, 55 Ark. 510, 19 S.W. 314, 317, the rule was announced that negligence is not actionable unless it is the procuring cause. In that case appellee, contrary to its contract with appellant, had failed to remove cotton from its warehouse and the cotton was later destroyed by fire. The court held there was no liability using this language:

'The mere failure of the defendant to perform its contract with the compress company was in nowise the juridicial cause of the fire. There was no direct onnection between the neglect of the defendant to furnish transportation according to its contract and the fire. The failure to furnish cars was one of a series of antecedent events without which, as the result proves, the fire, probably, would not have happened, for, if the cotton had been removed, there might have been to fire. But it was not the direct and proximate cause, and did not make the defendant responsible for losses caused by the fire.'

In the case of Gage v. Harvey, 66 Ark. 68, at page 71, 48 S.W. 898, 43 L.R.A. 143, in an action based on negligence where there was an intervening cause the court said:

"Supposing that, if it had not been for the intervention of a responsible third party, the defendant's negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent responsible human action."

In James v. James, 58 Ark. 157, 23 S.W. 1099, 1100, the facts were: A ginner agreed to gin cotton left at a gin by a certain time and failed to do so and the cotton was subsequently destroyed by fire while at his gin. The jury was instructed to find for the plaintiff if it should find that the defendant had contracted to gin the cotton by a certain time and that he negligently failed to do so. The cause was reversed because of the above instruction. The court stated: "The failure to gin on Monday' was one of a series of antecedent events, without which the loss would not have occurred, but such failure was in no sense the proximate cause of the loss.'

In Pittsburg Reduction Company v. Horton, 87 Ark. 576, 113 S.W. 647, 648, 18 L.R.A.,N.S., 905, the court stated the rule applicable in the case under consideration in these words: 'It is a well-settled general rule that, if, subsequent to the original negligent act, a new cause is intervened, of itself sufficient to stand as the cause of the injury, the original negligence is too remote.'

In Wisconsin and Arkansas Lumber Company v. Scott, 153 Ark. 65, 239 S.W. 391, 393, where plaintiff sought to have the jury instructed on negligence of the defendant in leaving a set-screw exposed and also in allowing rubbish to accumulate, this court in reversing the lower court said:

'If the alleged defect in this respect was not the direct and proximate cause of the injury, it necessarily follows that the court erred in submitting it to the jury as a question of negligence, on account of which the plaintiff might recover.'

The same uniform rule on 'proximate cause' can be found in any number of our decisions, among some of which are: Meeks v. Graysonia, Nashville and Ashdown Railroad Company, 168 Ark. 966, 272 S.W. 360; Alaska Lumber Company v. Spurlin, 183 Ark. 576, 37 S.W.2d 82; Booth & Flynn v. Price, 183 Ark. 975, 39 S.W.2d 717, 76 A.L.R. 957; Arkansas Power and Light Company v. Marsh, 195 Ark. 1135, 115 S.W.2d 825; and, Central Flying Service v. Crigger, 215 Ark. 400, 221 S.W.2d 45.

In the Marsh case, supra [195 Ark. 1135, 115 S.W.2d 828], the court quoted with approval from Corpus Juris the following:

"Intervening cause as...