Little Rock Railway & Electric Co. v. Sledge

• Decision Date: 21 April 1913
• Citation: 158 S.W. 1096,108 Ark. 95
• Parties: LITTLE ROCK RAILWAY & ELECTRIC COMPANY v. SLEDGE
• Court: Arkansas Supreme Court

158 S.W. 1096

108 Ark. 95

LITTLE ROCK RAILWAY & ELECTRIC COMPANY v. SLEDGE

Supreme Court of Arkansas

April 21, 1913

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

STATEMENT BY THE COURT.

On the night of April 12, 1910, appellee was walking along the west side of Center Street, to cross Fifth Street, in the city of Little Rock. After he had crossed the sidewalk and gone a part of the way into the street, he saw a wagon coming from the west. He stopped, and when he saw that he could go ahead of it, proceeded to cross the north street car track running west on Fifth Street, and the wagon passed to the north of him. Appellee's attention was drawn to the wagon, and before the wagon left him, an automobile with a bright headlight on it, coming toward him from the west, sounded its gong, and he stepped back and stopped still for the automobile to pass. The automobile was running down the south track, and when appellee stepped back out of the way of the automobile, a street car, coming from the east on the north track, struck him, inflicting severe injuries upon his person.

Appellee's attention was directed to the noise of the automobile. He was watching the automobile after the wagon passed him. He didn't see the automobile until the wagon had passed him and didn't see the street car until the instant he was struck. If he had seen the car he would have got out of the way. He didn't hear the car that struck him; it struck him before he saw it. "As he was going down he looked up and saw that it was a street car that struck him." The car had the usual lights inside and a headlight. The automobile also carried a bright headlight.

Appellee before starting across the street, had just come from a bar room where he had taken "a sup of beer" with a friend, and was going home. He didn't look for cars wagons or automobiles before leaving the sidewalk and until he had got into the street. He was proceeding rapidly across the street, and plunged into the dangerous situation, as shown by the approaching vehicles and cars, and from which situation he was unable to extricate himself, and received the injury of which he complains.

He alleged that his injuries were caused through the negligence of appellant's motorman in running its cars "at a high rate of speed without sounding the gong."

The appellant denied the allegations of the complaint, and set up the defense of contributory negligence.

In addition to the above facts, shown by the testimony of the appellee himself, a witness in his behalf testified that he saw the plaintiff as he crossed the street, and that there was a wagon and an automobile moving toward Main Street and a street car going west on Fifth Street. That the plaintiff tried to cross in front of the wagon, and that the automobile made him jump back. At the time plaintiff started to cross the street the street car was east of him a distance of about sixty feet. If the automobile had not stopped plaintiff, and if he had not stepped back, he would have had time to get across the street. Plaintiff was dragged about forty feet after he was struck by the car.

The testimony of the motorman showed that he sounded the gong about fifty or sixty feet from Center Street as his car approached it going west. The motorman "struck his gong a time or two about fifty feet east of Center Street." The only time he rang it "was to kick it about fifty feet east of the east line of Center Street." The headlight on the car was burning all the time. There was no obstruction in the street to prevent him from seeing the man if he had been in the street. He could have seen him approach the track, but didn't see him. "He didn't come out there." The first time he saw the man was just as he ran into the car. The injury occurred about forty feet west of the west line of Center Street, according to the testimony of this witness, and he didn't see any wagon or any automobile coming from the west, going east, at the time or about the place when and where the accident occurred.

The plaintiff introduced an ordinance of the city which provides "That every street railway company operating its cars in the streets or other public places of the city of Little Rock shall place a suitable bell or gong on each of such cars, and cause the same to be rung or sounded on each car approaching or passing another car or approaching or passing any street crossing or other regular crossing, such ringing or sounding to be commenced at a distance of not less than fifty feet from the car or crossing approached, and continued until such car or crossing has been passed."

Among other prayers for instructions, granted at the instance of the appellee and over appellant's objections, were the following:

"1. You are instructed that where a street car crosses another street other than that along which it is moving, and a pedestrian is lawfully and in the exercise of due care using such other street for the purpose of crossing the street along which the street car is being operated, the street car and the pedestrian have equal rights to the use of the crossing. That is to say, in this case, if the plaintiff was going south on the west side of Center Street at and on the street crossing, and the street car was going west on Fifth Street, and was crossing Center Street, the one that was on that particular point of Fifth and Center streets which was a part of the street car track, and also that part of Center and Fifth streets, which constituted and was a crossing for a pedestrian travelling south on Center Street on the west side of Center Street, first, had the right to use that particular part of the street for lawful rights and in the exercise of due care to the exclusion of the other."

"3. You are instructed that it is for you to determine whether or not, under the facts and circumstances proved in this case, the plaintiff was, or was not, negligent in not looking to see whether a car was approaching."

The appellant duly excepted to the rulings of the court in granting these prayers.

Appellant, among others, presented the following prayers for instructions, which the court refused:

"1. You are instructed to find for the defendant."

"3. The court instructs you that plaintiff, according to his own testimony, was guilty of contributory negligence in attempting to cross defendant's track in front of an approaching car without looking or listening to see if a car was approaching dangerously near, and because of such negligence he will not be entitled to recover a judgment in this case, unless you find from the evidence that defendant's motorman discovered his peril, after he got upon the track, in time to have stopped the car and avoided striking him, and yet failed to do so."

"8. The street cars, of necessity, must have, and do have, a right-of-way on their tracks where they alone can travel, and this right is superior to that of pedestrians. This paramount or better right to the use of their tracks does not give them the right to exclude travellers, and these may move along or cross these tracks at any time where such travelling does not interfere with the progress of the cars; where there is conflict, the individual traveler must yield the right-of-way.

"If you find that plaintiff attempted to cross defendant's track without looking or listening, or using other prudent means to protect himself from injury, then he can not recover, unless you further find that defendant discovered plaintiff's peril in time to avoid the accident by the use of ordinary care, yet failed to do so."

The court modified appellant's prayer for instruction No. 8 and gave the same as modified, as follows:

"8. The street cars, of necessity, must have, and do have, a right-of-way on their tracks, where they alone can travel, and this right is superior to that of pedestrians between intersecting streets. This paramount or better right to the use of their tracks between streets does not give them the right to exclude travellers, and these may move along or across their tracks at any time and place where such travelling does not interfere with the progress of the cars; where there is conflict, the individual traveler must yield the right-of-way.

"If you find that plaintiff attempted to cross defendant's tracks between intersecting streets, without looking or listening, or using other prudent means to protect him self from injury, then he can not recover, unless you further find that defendant discovered plaintiff's peril in time to avoid the accident by the use of ordinary care, yet failed to do so."

The appellant duly objected and excepted to the refusal of the court to grant its prayers numbered 1, 3 and 8 as requested, and to the giving of prayer No. 8 as modified.

Other prayers for instructions were given and refused, but the above are sufficient for the purposes of the opinion. The verdict and judgment were in favor of the appellee in the sum of $1,500, and the case is here on appeal.

Judgment reversed and cause remanded.

Rose, Hemingway, Cantrell & Loughborough, for appellant.

1. The court erred in declaring the law as to the relative rights and duties of the parties upon the highway. The first instruction given did not correctly state the law. 64 Ark. 420; 14 Gray 69; 7 Allen 573; 2 Sh. & Redf. on Negl., § 425a; 2 Nellis on St. Rys., § 387; 33 La.Ann. 154; 42 A. 699; 61 P. 40; 141 F. 599; 133 S.W. 449; 85 N.W. 1036; 42 P. 914; 35 Id. 920; 98 Id. 839; 77 N.W. 238; 65 P. 284; 61 S.E. 821; 79 S.W. 243; 63 N.W. 401; 84 S.W. 1154; 95 P. 602. The vital question is one of relative negligence, not relative rights. 61 S.E. 822, Syl. 9; 78 Ark. 129.

2. The court erred in its charge with respect to plaintiff's failure to look and listen. 45 N.Y. 191....