Millsaps v. Brogdon

• Court: Arkansas Supreme Court
• Writing for the Court: KIRBY, J.
• Citation: Millsaps v. Brogdon, 134 S.W. 632, 97 Ark. 469 (Ark. 1911)
• Decision Date: 06 February 1911
• Parties: MILLSAPS v. BROGDON

134 S.W. 632

97 Ark. 469

MILLSAPS v. BROGDON

Supreme Court of Arkansas

February 6, 1911

Appeal from Garland Circuit Court; W. H. Evans, Judge; reversed.

Judgment reversed and cause remanded.

Greaves & Martin, for appellant.

1. Appellant's request for a peremptory instruction should have been given. Where, as in this case, the undisputed evidence shows that the plaintiff was guilty of contributory negligence, it is the duty of the court to declare that he has no cause of action. The facts being undisputed, the question of contributory negligence becomes one of law. 76 Ark. 12; 61 Ark. 549; 65 Ark. 235; 69 Ark. 134; 63 Ark. 427; 72 Ark. 572.

2. The giving of instruction No. 11, and refusing instruction No. 6 constituted fatal error. 69 Ark. 449; 71 Ark. 475; 72 Ark 544; 68 Ark. 288; 77 Ark. 1, 10; 72 Ark. 579.

James E. Hogue, for appellee.

OPINION

KIRBY, J.

Appellee brought suit for damages for personal injuries alleged to have been caused by appellant's negligence in running him down with an automobile on the streets of the city of Hot Springs. Appellant denied that he was injured, or that he was struck by appellant's automobile or caused any suffering and damages, and alleged contributory negligence on the part of appellee.

The testimony tended to show that appellee, a beggar upon his crutches, was walking "quartering" or diagonally across Central Avenue in Hot Springs on the day of the injury, and after crossing the street car track in front of a car, which stopped to take on passengers, he stopped within about six feet of the curb on the west side for about a minute, trying to decide whether he should go up or down the street for dinner, it being about 1 o'clock; that he was looking down the street and heard an automobile horn in his rear, and was immediately struck and knocked down; that everything seemed to be clear when he crossed the street; that he did not see the automobile, and heard nothing to indicate its approach until the horn sounded, and he was struck before he could move; that appellant was going down Central Avenue, and was seen 50 or 60 feet away from the place of the injury in his car going about 20 miles an hour, and that he apparently made no effort to stop; that there was not room between the place appellee was standing and the standing car for the automobile to pass without striking one or the other; that appellant had to run in ahead of the car there, the track running so close to the curb at that point.

Appellant testified that he was going south on the avenue to his place of business, the street car to his left going down, and he slowed up before he got to the crossing, saw appellee turn off, having crossed just in front of the car, and was running slowly to give him a chance to get out of the way; that appellee was walking across the street and stopped when he got within eight or ten feet of him, too close to stop the automobile, and he turned it aside and tried to pass between him and the car; that he could not have gone further to the left without running into the car; that the injury occurred in a narrow part of the street on a curve; that there was not room to go between appellee and the street car at the time appellee stopped, and the collision with him or the street car could not be avoided.

Appellee was injured by the collision, his hand and head cut and bruised, and he testified that since the injury he has suffered from headache, which he never had before, and that he was unable to lie on his right side; that he worried a great deal over his condition, and was about hopeless as to ever recovering since the injury. There was other testimony as to the extent of his injury, which the doctor to whom appellant sent him for treatment testified was slight and not serious, and for the treatment of which he only charged appellant $ 4.90.

The evidence showed that appellee had been a cripple for five years; that he was farming when he became ill, and that he had no means of support, and could do no work except to sell shoe strings and pick up bottles and junk for a living.

The court gave several instructions at the request of appellee, including No. 11, as follows:

"The court instructs the jury that if you find that the defendant ran against the plaintiff with his automobile upon the public street, and injured him, a prima...