McAllister v. Calhoun
| Decision Date | 13 October 1947 |
| Docket Number | 4-8257 |
| Citation | 205 S.W.2d 40,212 Ark. 17 |
| Parties | McAllister, Administrator, v. Calhoun |
| Court | Arkansas Supreme Court |
Rehearing Denied November 17, 1947.
Appeal from Cross Circuit Court; Walter N. Killough, Judge.
Reversed.
J C. Brookfield, for appellant.
Giles Dearing and Buzbee, Harrison & Wright, for appellee.
This appeal involves the question of the sufficiency of the evidence to sustain a charge of willful and wanton negligence on the part of the driver of an automobile in an action for damages against the owners under our guest statute .
Carl McAllister brought an action to recover damages for the death of his 15-year-old daughter while riding as a guest in an automobile owned by defendants, J. V. Calhoun and wife, and being operated by their daughter-in-law, Mrs. J. V. Calhoun Jr. At the conclusion of the testimony on behalf of plaintiff, the trial court directed a verdict in favor of defendants on the ground that the evidence was insufficient to show that the operator of the car involved in the tragedy was guilty of willful or wanton negligence as required by the guest statute.
In determining the correctness of the ruling of the trial court on this issue we must give the evidence its strongest probative force in favor of plaintiff. The rule is stated in Barrentine v. The Henry Wrape Co., 120 Ark. 206, 179 S.W. 328, as follows: "In determining on appeal the correctness of the trial court's action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury." See, also, Scott v. Wisconsin & Ark. Lbr. Co., 148 Ark. 66, 229 S.W. 720.
The evidence on behalf of plaintiff was as follows: Imogene Calhoun, the 16-year-old daughter-in-law of defendants, was residing with them at Vanndale, Arkansas, in July, 1945, while her husband, J. V. Calhoun, Jr., was in military service. A friend, Alidean Tyree, of Forrest City, Arkansas, was visiting Imogene on July 22, 1945, when defendants gave their daughter-in-law permission to use their 1942 Pontiac automobile to make a trip to Wynne, Arkansas. Defendants' five-year-old daughter, Fay Frances Calhoun, wanted to go to the picture show at Wynne and permission was given for her to go along. They drove to Wynne where Fay Frances was left at the home of relatives. Imogene and Alidean then drove to Cherry Valley and picked up their friends, Margie Cummings, Naomi Cummings Gardner, and the deceased, Verdie Rae McAllister, after the latter had obtained plaintiffs' permission to join the others.
Wynne is located 14 miles south of Cherry Valley and seven miles south of Vanndale. The trip from Wynne to Cherry Valley and return was made via Birdeye instead of Vanndale, the home of defendants and a more direct route. In Wynne the five girls picked up Fay Frances Calhoun and two younger sisters of the Cummings girls and left them at a movie theater. At Imogene's suggestion the five girls then decided to drive to Forrest City, which is 16 miles south of Wynne, intending to pick up the children on their return to Wynne after the show was over.
Imogene was driving at a high rate of speed at a point about three and one-half miles south of Wynne when she lost control of the car which left the road, turned over and came to a stop in a field about 50 or 60 feet from the highway, tearing up the ground as it went. The accident happened sometime in the afternoon on State Highway No. 1 which is a hard-surfaced road. Verdie Rae McAllister sustained injuries resulting in her death 44 hours later.
Margie Cummings, who was riding on the back seat, testified that Imogene drove 75 miles per hour on the trip from Cherry Valley to Wynne and that she and her sister asked Imogene to reduce the sped and that she promised to do so before they left Wynne for Forrest City; that they were driving 80 miles an hour just before the accident, when Naomi Gardner again asked her to slow down; that Imogene was still driving 80 miles per hour, when they heard a noise which sounded as if a recap on a rear tire was coming off. Margie testified that Imogene applied the brakes when they heard the noise under the car, while Naomi testified that she did not know whether or not the brakes were applied. There was no evidence that the tire blew out. Imogene lost control of the car which left the road, turned over and went through, or over, a barbed wire fence enclosing the field where the car stopped. The girls were friends and the purpose of the trip to Forrest City was to take an airplane ride, which was suggested by Imogene.
There was also evidence that Imogene had the reputation of being a fast and reckless driver, and that defendants permitted her to drive the automobile knowing that she was a reckless driver.
To sustain the action of the trial court in directing a verdict in their favor defendants say that evidence of excessive speed and noncompliance with the request of a guest to slow down are not, alone, sufficient...
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