Miller v. Fort Smith Light & Traction Company

• Decision Date: 21 October 1918
• Docket Number: 179,258
• Citation: 206 S.W. 329,136 Ark. 272
• Parties: MILLER v. FORT SMITH LIGHT & TRACTION COMPANY
• Court: Arkansas Supreme Court

206 S.W. 329

136 Ark. 272

MILLER v. FORT SMITH LIGHT & TRACTION COMPANY

No. 179, 258

Supreme Court of Arkansas

October 21, 1918

Appeal from Sebastian Circuit Court, Fort Smith District; Paul Little, Judge; affirmed.

STATEMENT OF FACTS.

Ruby Miller sued the Ft. Smith Light & Traction Company to recover damages for personal injuries sustained by her in a collision between an automobile owned and operated by her husband and a street car of the defendant which she alleges occurred on account of the negligence of the defendant's servants in operating its street car. The defendant answered and denied negligence on its part and pleaded contributory negligence on the part of the plaintiff in bar of her recovery.

The accident happened in the city of Ft. Smith, Arkansas, on the 27th day of October, 1917. At that time, the defendant was a corporation operating a line of street railroad in the city of Ft. Smith, and also an interurban railroad from points within the city of Ft. Smith to a point in the city of Van Buren, Arkansas. At the time she received her injuries, the plaintiff was riding in an automobile driven by her husband. The street car with which the automobile came in collision turned out of Garrison avenue and proceeded north along Eleventh street. Eleventh street was double tracked, and the car in question was being operated on the right-hand or east track. There was a car coming south on this street, which was being operated on the west track. The automobile in which the plaintiff was riding was being driven along H street in an easterly direction and collided with a street car about the intersection of H and Eleventh streets. The automobile was in low gear after the accident, and it was shown by skilled mechanics that it would be extremely difficult to change the automobile from high to low gear while it was being driven at a high rate of speed, and also that an automobile of the kind in which the plaintiff was riding could only be driven ten or twelve miles per hour in low gear. It was also shown that the street car coming south had stopped on the south side of H street and was receiving and discharging passengers at the time the accident occurred. An ordinance was introduced which showed that this was the wrong side of the cross street for this car to have stopped for the purpose of receiving and discharging passengers.

On the part of the street car company, it was shown that the street car was running at the rate of eight or ten miles per hour when the accident happened; that the motorman was ringing his gong for the crossing, and that the automobile was nearly a half block away on H Street when the motorman sounded the gong; that the automobile came east on H Street at an extremely fast speed; that the motorman began to apply his brakes and did all that he could to stop the car; that the automobile approached very rapidly and struck the street car about three feet back of the front fender and knocked it off of the track; that the automobile swerved to the left as if it was going to turn north, just before it struck the street car, and the right wheel of the automobile struck the street car and mashed in the front side of the automobile. The street car was a summer car, and was knocked entirely from the track and over against an electric light pole by the sidewalk. It was also shown that the southbound street car had already crossed H Street without stopping on either side of it, and had reached the middle of the block before the accident occurred. The car was then backed up to the south side of H Street for the purpose of assisting those who might have been injured in the collision, and that the passengers debarked from the car for that purpose and some of them again embarked on it. Other facts will be stated or referred to in the opinion.

There was a trial before a jury which resulted in a verdict for the defendant, and from the judgment rendered the plaintiff has appealed.

Judgment affirmed. Motion for rehearing denied.

J. F O'Melia and Ben Cravens, for appellant.

1. The court erred in refusing plaintiff's instructions Nos. 4 and 5. 126 Ark. 381.

2. Also in refusing Nos. 6 and 11. 123 Ark. 559.

3. Also in refusing No. 13.

4. It was error to permit the defendant to read in evidence the motion for a continuance. Kirby's Dig., § 6173. 67 Ark. 142.

5. The franchise ordinance was admissible as evidence to show negligence of defendant. 5 Ark. 595; 116 Id. 125.

6. It was error to prohibit plaintiff from offering in evidence Exhibit E. 111 Ark. 83.

7. It was error to give instruction No. 3 for defendant. 2 Enc. Pl. & Pr., pp. 58-9.

8. It was prejudicial error to give Nos. 8 and 9 for defendant. Ib.

9. It was error to give Nos. 12 and 14. 126 Ark. 377; 72 Id. 572.

10. Also in giving Nos. 17 and 18. There is no evidence that plaintiff was in the seat beside the driver. 70 Ark. 82; 105 U.S. 350; 11 Wall. 391; 15 Id. 401; 99 U.S. 676.

11. Also No. 19. As to the duty to look and listen. See 119 Ark 301.

Hill Fitzhugh & Brizzolara, for appellee.

1. There is no error in giving and refusing instructions. 123 Ark. 559. The instructions lay down the correct rule. 119 Id. 229; 8 L.R.A. 597; 72 Ark. 572; note to Am. Ann Cas. 1912 A. 650; 128 Ind. 97; 28 Ind.App. 523; 116 Iowa 548; 62 Kan. 709; 66 Id. 735; 28 Ky. L. R. 1113; 80 Me. 430; 78 Miss. 334; 177 Mo. 456; 119 Mo.App. 358; 129 N.Y. 290; 66 Hun. 566; 30 Misc. 104; 10 Oh. C. C. 635; 20 Id. 297; 129 Pa. 514; 72 Tex. 643; 44 F. 574.

2. There was evidence that plaintiff was on the seat with the driver. No specific objections were made to instruction No. 17. 73 Ark. 595; 87 Id. 396; 1 Crawford's New Dig., 168-170. The error, if any, was harmless. 179 F. 577; 73 A. 540.

3. The fact that plaintiff was a guest did not relieve her from exercising ordinary care. 73 A. 540. See also 114 Pa. 643; 129 Id. 524; 6 L.R.A. 143; 52 A. 543; Ann. Cas. 1913 B. 684-6.

4. Number 19 correctly states the law. It was plaintiff's duty to look and listen as well as the motorman's. 116 Ark. 137; 108 Id. 95.

5. There was no error in admitting the testimony of F. F. Tregon. It was distinctly agreed that the motion for continuance might be considered in both cases. The city ordinance was properly excluded, as it had no bearing on the case. The appliances of the car were in proper order.

OPINION

HART, J., (after stating the facts).

1. It is first insisted that the court erred in permitting the defendant to read to the jury as evidence the motion for a continuance in the case of T. H. Miller v. Ft. Smith Light & Traction Company. It appears from the record that T. H. Miller was the husband of Ruby Miller, and had also brought suit against the defendant for injuries received by him in the same accident. His case was set for trial first, and the defendant filed a motion for a continuance, which the court announced would be granted unless the testimony referred to in the motion for a continuance was allowed to be read in each of the cases. The same attorneys represented both the husband and wife. It was agreed that the testimony set out in the motion for a continuance should be read in each case. Hence there was no error in this respect.

2. It is next insisted that the court erred in refusing to give instruction No. 13 at the request of the plaintiff. The instruction is as follows: "If you believe from the evidence that the operatives of the street car were running said car along North Eleventh Street at an excessive and rapid and dangerous rate of speed, and at such a rate of speed that they could not stop the same in time to avoid a collision, if an automobile should or might appear from the west, and to the rear of the street, or on the west track, then the operatives would be guilty of negligence, and if the injury to Ruby Miller was caused thereby, as explained herein, then the jury should find for the plaintiff, Ruby Miller."

In the first place, it may be stated that this instruction was defective for the reason that it told the jury that if the street car was "running at such a rate of speed that the employees could not stop same in time to avoid a collision if an automobile should or might appear from the west, then operatives were guilty of negligence." This instruction would have made it the absolute duty of the motorman to have had his car under such control that he could stop it every time a vehicle came upon the track and would have made it the insurer of the safety of persons driving automobiles. This is not the law. The defendant was only required to have its cars under such control that they could be stopped so as to prevent injury to persons using the street in the ordinary and usual manner. Instructions on the relative duties of the street car company and those driving automobiles as to their use of the streets are fully covered in other instructions given by the court.

3. It is also claimed that the court erred in giving instruction No. 17 at the request of the defendant. Instruction No. 17 is as follows: "The court instructs the jury that, although the plaintiff may not have been the driver of the automobile mentioned in the testimony, nevertheless plaintiff, situated as she was, had no right to rely implicitly upon the care and prudence of the driver on the seat beside her for her own safety, but it was her duty, if said driver was approaching said Eleventh Street, on which cars were passing at a careless rate of speed, to attempt to have him check his speed to a safe rate, and if the jury find that under the circumstances said automobile was approaching defendant's tracks at a careless rate of speed, and the plaintiff, situated as she was, made no effort to have said speed diminished, and that such action of the plaintiff contributed...