Minor v. Mapes

• Decision Date: 19 February 1912
• Citation: 144 S.W. 219,102 Ark. 351
• Parties: MINOR v. MAPES
• Court: Arkansas Supreme Court

144 S.W. 219

102 Ark. 351

MINOR v. MAPES

Supreme Court of Arkansas

February 19, 1912

Appeal from Garland Circuit Court; Calvin T. Cotham, Judge affirmed.

Judgment affirmed.

Greaves & Martin, for appellant.

1. While the driver of an automobile is required to use all the care and caution which a careful and prudent person would exercise under the same circumstances, yet he has the right to assume, and act upon the assumption, that others using the highway will also exercise a like caution and not recklessly expose themselves to danger. It is only when a driver realizes that a footman is in a position of danger that he is required to exercise additional care to avoid a collision. 77 N.Y.S. 276.

Automobile drivers and pedestrians have equal rights to the use of the streets, and each is bound to exercise ordinary care for his own safety and to prevent injury to others. Millsaps v Brogden, 97 Ark. 469. Under the rule laid down in this case, appellant was not negligent.

2. From appellee's own statement, he was guilty of contributory negligence, and the court should so have charged the jury. 76 Ark. 12; 95 Ark. 192. It was his duty in crossing the street to look along the street in the vicinity of the crossing, in both directions for a reasonable distance for coming vehicles 45 N.Y. 191, 6 Am. Rep. 66; 30 Am. Rep. 620; Beach on Contributory Negligence, §§ 268-9; 58 N.Y. 631; Thomas, Negligence, 1140, 19 L. R. A. (N. S.) 160; 22 Id. 470.

3. Under the facts in the case the appellant is not liable unless because of the relation of husband and wife. His prima facie liability because of that relation is a mere presumption such as could be overcome by proof, and there was evidence to overcome such presumption is this case. 44 Ark. 401; 86 Ark. 130. Since the court could from the evidence say as a matter of law that the prima facie presumption had been overcome by sufficient evidence, it should have instructed a verdict for the appellant. 75 Ark. 406, 409; 71 Ark. 445; 33 Ark. 146.

Appellee, pro se.

1. Appellant was guilty of gross negligence in running the automobile at excessive speed so near to the street car at a time when he knew that the street car had stopped to receive and discharge passengers, instead of running at a reasonable speed and a reasonable distance from the car track. 99 S.W. 247, 30 Ky. L. Rep. 500, 8 L. R. A. (N. S.) 1228. Appellant should have kept his automobile under such control that he could have readily stopped it in case of an emergency. He was under the duty to exercise all the care and caution which a careful and prudent driver would have exercised under the circumstances--the care commensurate with the known or reasonably to be apprehended danger. 77 N.Y.S. 276; 22 L. R. A. 635; 94 Ind. 72, 75; 39 Md. 243, 249; 81 Mo.App. 155, 163; 5 N.Y.Misc. 209, 210, 25 N.Y.S. 91; 54 Pa.St. 345; 93 Am. Dec. 708; 117 N.W. 531, 534.

2. There is no proof of contributory negligence on the part of appellee. Pedestrians have the same rights in the streets as vehicles. One is not required to stop and look in both directions before attempting to cross a street, and the law only requires of him that he act with ordinary prudence, and he has the right to presume, and act upon the presumption, that others will exercise the same prudence. 65 A. 778, 780; 67 A. 87.

3. The ownership of the automobile is not material, and the fact that his wife was driving it does not relieve him from liability. 44 Ark. 401.

OPINION

MCCULLOCH, C. J.

Appellee sued appellant in the circuit court of Garland County to recover damages on account of personal injuries resulting from alleged negligence on the part of appellant in driving an automobile, or causing it to be driven, along Central Avenue in the city of Hot Springs. Appellant and his wife were in the machine at the time, the latter driving. Appellee alighted from a street car, at the front end of it, which was customary, and started across the track in front of the car to go to the opposite side of the street. He hesitated at first, but the motorman told him to go ahead, and he proceeded to cross. As he stepped beyond the end of the car, the automobile, which was running at a speed of ten or twelve miles per hour struck him and knocked him down. He was just stepping on the other track, about four feet from the street car, when the automobile struck him. It was a rainy day, and he had his umbrella raised and was walking rapidly. He testified that the street car obstructed the view down the street, and that as he passed the car he looked down the street but didn't see the automobile approaching, and failed to see it until too late to get out of the way. There was a space of sixty feet between the street car and the other side of the street.

Appellant testified that he purchased the machine, and gave it to his wife for her own use--that she drove it herself, and that he never attempted to drive and knew nothing about handling a machine of that kind. There was testimony to the effect that appellant paid the city vehicle license fee for operating the machine.

The verdict was in appellee's favor for recovery of damages.

It is insisted that the evidence fails to establish negligence on the part of appellant, and that the undisputed evidence shows negligence on the part of appellee which bars recovery. We think that on both of those issues the verdict is sustained by sufficient evidence.

The machine was being operated at a rapid rate of speed, unnecessarily near the street car, though there was abundant space further out in the street for the machine to pass along. It was customary for passengers to alight from the front end of street cars, and it was reasonably to be anticipated that they might pass in front of a car going to the other side of the street. The jury was warranted in finding that it constituted negligence for an automobile driver to run the machine at a rapid speed so near a street car which had stopped for passengers to alight.

Automobilists and the drivers of other vehicles have the right to share the street with pedestrians, but they must anticipate the presence of the latter and exercise reasonable care to avoid injuring them. Care must be exercised commensurate with the danger reasonably to be anticipated. Gregory v. Slaughter, (Ky.) 124 Ky. 345, 99 S.W. 247, 8 L. R. A. (N. S.) 1228.

The question of contributory...