Miller v. Ft. Smith Light & Traction Co.

• Decision Date: 21 October 1918
• Docket Number: (Nos. 179, 258.)
• Citation: 206 S.W. 329
• Parties: MILLER v. FT. SMITH LIGHT & TRACTION CO.
• Court: Arkansas Supreme Court

206 S.W. 329

MILLER v. FT. SMITH LIGHT & TRACTION CO.

(Nos. 179, 258.)

Supreme Court of Arkansas.

October 21, 1918.

On Rehearing, November 18, 1918.

Appeal from Circuit Court, Sebastian County; Paul Little, Judge.

Suit by Ruby Miller against the Ft. Smith Light & Traction Company. Judgment for defendant, and plaintiff appeals. Affirmed.

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, Ark., 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, Ark. 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 righthand 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 10 or 12 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 8 or 10 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.

J. F. O'Melia and Ben Cravens, both of Ft. Smith, for appellant.

Hill, Fitzhugh & Brizzolara, of Ft. Smith, for appellee.

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

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 the street car was "running at such a rate of speed that the employés 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 directly to said collision and her injuries, then she cannot recover, and your verdict must be for the defendant."

In an instruction on behalf of the plaintiff the court told the jury that the negligence of the husband could not be imputed to his wife, and that, if the injury happened on account of the combined negligence of the driver of the automobile and the motorman, the plaintiff could recover. This is in accord with the rule in the case of Hot Springs Street Railroad Co. v. Hildreth, 72 Ark. 572, 82 S. W. 245. See, also, Carter v. Brown, 206 S. W. 71. The instruction on this point given by the court at the request of the plaintiff is as follows:

"10. If the plaintiff, Ruby Miller, was at the time of the collision a passenger in an automobile over which she had no control, and if she was not at the time directing or...