Little Rock Traction & Electric Co. v. Hicks

• Decision Date: 04 June 1906
• Citation: 96 S.W. 385,79 Ark. 248
• Parties: LITTLE ROCK TRACTION & ELECTRIC COMPANY v. HICKS
• Court: Arkansas Supreme Court

96 S.W. 385

79 Ark. 248

LITTLE ROCK TRACTION & ELECTRIC COMPANY v. HICKS

Supreme Court of Arkansas

June 4, 1906

Appeal from Pulaski Circuit Court; Edward W. Winfield, Judge reversed in part.

Judgment affirmed.

Rose Hemingway, Cantrell & Loughborough, for appellants.

1. As to the railway company, the suit was ex contractu. The amount involved was less than $ 100. The circuit court was without jurisdiction as to it. Sec. 40, Art. 7, const. This court will consider the question of jurisdiction, though not raised below. 45 Ark. 346; 45 Ark. 450; 48 Ark. 301. The court erred in permitting it to be brought in by amendment. 44 Ark. 375.

2. The evidence is not sufficient to sustain the verdict. The statute, Kirby's Digest, § 6773, does not apply to street railways. There is no presumption of negligence against them. 72 Ark. 572. The verdict was based upon inferences and presumptions which did not naturally flow from such facts as were proved. 34 Ark. 632.

3. The court erred in admitting improper and prejudicial evidence of Trustin Hicks who had not qualified to testify as an expert. The ordinary rate of speed of other cars had no connection with the speed of the car that struck the cow. 58 Ark. 454; 157 Ill. 612; 63 App.Div. (N. Y.), 423; 36 Ore. 315; 6 Wash 75.

4. The court's first instruction given at request of plaintiff was erroneous, in that it withdrew from the jury plaintiff's contributory negligence in allowing the cow to run at large. 62 Ark. 167; 64 Ark. 421; 65 Ark. 435; 77 Ark. 398.

W. C. Adamson, for appellee.

1. There was evidence legally sufficient to support the verdict. It will not be disturbed. 51 Ark. 467; 57 Ark. 577.

2. It is not required that one be an expert in order to give his opinion as to how fast a car is traveling. 62 Ark. 254; 12 Am. & Eng. Enc. Law (2 Ed.), 473. Even if it was error to admit the testimony, it was merely cumulative evidence, and the judgment will not be reversed. 20 Ark. 216; 56 Ark. 37. Nor will it be reversed, if the fact toward which the incompetent evidence was directed was otherwise proved by competent evidence. 58 Ark. 125.

3. There was no error in the first instruction. It is in evidence that plaintiff lived outside the stock limits, and the injury occurred without the limits. Moreover, it is not shown that the cow was at large through negligence of plaintiff, but on the contrary it was the custom to keep her up.

4. If on the whole case the verdict was right, the judgment will not be reversed. 44 Ark. 556; 43 Ark. 296; 46 Ark. 542.

OPINION

BATTLE, J.

Mrs. H. L. Hicks brought an action before a justice of the peace of Pulaski County against the Little Rock Traction & Electric Company, a street railway company, for damages caused by it negligently injuring a cow belonging to her. The amount sued for was $ 75. In a trial before the justice of the peace the defendant recovered judgment. Plaintiff then appealed to the circuit court, and on the first of October, 1904, filed in that court an amendment to her complaint, in which she made the Little Rock Railway & Electric Company a party defendant, alleging that it had purchased the property of the Little Rock Traction & Electric Company, and had assumed the payment of its obligations, and asked for judgment against the former company for $ 75. The Little Rock Railway & Electric Company answered, and admitted that it had purchased from the Little Rock Traction & Electric Company its property and assumed its liabilities, and adopted its answer, and asked for judgment against plaintiff.

On October 4, 1904, the issues in the case were tried by a jury, which returned a verdict in favor of plaintiff in the sum of $ 35. Judgment was rendered for that amount against both defendants, and from this judgment they prosecute an appeal to this court.

The evidence adduced at the trial, which sustained the verdict of the jury, tended to prove the following facts:

On the night of 31st of August, 1902, about the hour of 9:06 p. m a cow of Mrs. H. L. Hicks was seriously injured and greatly damaged by a collision with a car on the street railway of the Little Rock Traction & Electric Company, in the city of Little Rock. The night was fair, and the stars were shining. In the locality in which the collision occurred, on the night, at the time of the collision, a cow lying down could have been seen one hundred and forty feet away. If standing on the track, she could have been seen by the motorman in his place one hundred yards ahead of the car; if near the sidewalk on the street, she could have been seen by him one hundred feet ahead of the car; and, if four or five feet from the track of the railway, could have been seen about one hundred yards away. No houses or trees cast a shadow in the street. The car was recklessly propelled at a great speed, to the great danger of persons and property on the track. One witness testified, over the objections of the appellants, "I have no means of telling how fast the car was running, but, judging from the ordinary speed of cars, being six or eight miles an hour, this car was running at a speed of about twenty miles an hour." The car struck the cow with great force, making a loud noise, pushing her a distance of thirty feet, tearing up the ground; one witness testifying that "there was a great big ditch in the ground where she (the cow) had been dragged." The cow was severely mangled by the collision. A witness who found her...