Missouri Pac. Transp. Co. v. Miller
| Decision Date | 11 February 1957 |
| Docket Number | No. 5-1142,5-1142 |
| Citation | 227 Ark. 351,299 S.W.2d 41 |
| Parties | MISSOURI PACIFIC TRANSPORTATION COMPANY et al., Appellants, v. V. W. MILLER et ux., Appellees. |
| Court | Arkansas Supreme Court |
Cracraft & Cracraft, Helena, Barber, Henry & Thurman, Little Rock, for appellants.
McMath Leatherman & Woods, Little Rock, John L. Anderson, Helena for appellees.
The appellant, Missouri Pacific Transportation Company, appeals from a judgment in the sum of $100,000 awarded V. W. Miller for personal injuries sustained by Miller while a passenger on one of appellant's busses; appellant also appeals from a judgment in the sum of $25,000 in favor of appellee, Mrs. V. W. Miller, for the loss of consortium. Judgments in like amounts were also returned against Rube Oxner, the other party involved in the collision, but he has not appealed.
The first question to be considered is whether there is any substantial evidence of negligence on the part of the bus driver. On November 16, 1955, at about 8:00 P.M., appellant's bus, while being driven by its employee, Thomas M. Hopkins, was traveling in a southerly direction between Marianna and Helena, Arkansas. The bus collided with a truck operated by Oxner. Appellee, V. W. Miller, was a passenger on the bus. He alleges the collision was due to negligence on the part of both Hopkins and Oxner, and that he received injuries as a result of the collision which rendered him permanently and totally disabled. It is appellant's contention that there is no substantial evidence of negligence on the part of its driver that would carry the case to the jury; that the collision was due entirely to the negligence of Oxner; that Oxner was drunk and, while driving his truck in a northerly direction, meeting the bus, suddenly, without warning, cut across the highway in front of the bus, and that the collision was unavoidable on the part of appellant's driver. On the other hand, appellees contend that he truck driven by Oxner could be seen by the bus driver for a distance of 600 feet, and that it was obvious or should have been obvious to the bus driver that the truck was out of control; and, in the circumstances, the bus driver was negligent in not reducing the speed of the bus to such an extent that it could be stopped absolutely, if necessary, to avoid the collision.
We must view the evidence in the light most favorable to appellees, and when that is done, if there is any substantial evidence of negligence on the part of the bus driver, then the trial court did not err in letting the case go to the jury on the issue of liability on the part of appellant. When viewed in the light most favorable to the appellees it can be said that the evidence shows the bus driver saw that Oxner was on the wrong side of the road while they were a considerable distance apart; that the bus driver could see that the Oxner truck was traveling in an abnormal manner; that the bus driver realized this, and blew his horn and blinked his lights, and reduced his speed to 45 or 50 miles an hour, but applied his brakes no further; that Oxner was drunk and his truck was out of control, and he cut across the highway in front of the bus; that the bus driver, although he had seen the truck weaving down the highway for a distance of some 200 yards, had not taken the necessary precautions to avoid a collision; that the bus, while traveling at about 55 miles an hour, hit the truck broadside; that the bus, after hitting the truck, traveled 123 feet, pushing the truck sideways; that the truck wheels, while being pushed sideways by the bus, dug a trench about 4 inches deep in the ground; that there were no skid marks indicating there was any attempt to stop the bus; that if a person were alert and anticipating that a stop might be necessary, the bus could have been stopped in 43 feet if it were making not more than 40 miles an hour. When all of the evidence is viewed in the most favorable light to the appellees, it cannot be said that there is no evidence to the effect that the bus driver was negligent in failing to observe that the truck was out of control, or in failing to act accordingly and reduce the speed of the bus to the point where it could be stopped absolutely to avoid the collision.
Appellant says the court erred in giving appellees' requested Instruction No. 2:
'You are instructed that in the exercise of the care required by the operator of the bus of the defendant Missouri Pacific Transportation Company, when such operator sees danger ahead or it is reasonably apparent if he is keeping a proper lookout, or if he is warned of approaching imminent danger, then the duty is imposed upon him and a reasonable control of the bus requires that he immediately bring his bus under such control as to be able to check the speed or stop it absolutely if necessary in the threatened emergency.
'Therefore, if you find from the evidence in this case that the driver of defendant Missouri Pacific Transportation Company's bus at the time of the alleged collision was aware of or had been advised of impending danger and negligently failed to bring his bus under such control as to be able to check its speed or stop it absolutely, if necessary, after such danger came within his line of vision then in that event he would be guilty of negligence and if such negligence, if any, proximately caused the injuries to the plaintiff, V. W. Miller, then your verdict in this case will be for the plaintiffs, V. W. Miller and Mrs. V. W. Miller.'
It is contended that the first part of the instruction is erroneous because it states that in the face of imminent peril the bus driver is required to bring the vehicle under such control that it can be stopped absolutely to avoid the threatened danger. This is a correct statement of the law. In Lockhart v. Ross, 191 Ark. 743, 87 S.W.2d 73, 77, the court approved an instruction which contained the following language: 'And it is the duty of such a driver to keep his automobile under such control as to be able to check the speed or stop it if necessary to avoid injury to others when danger is apparent.' And, in Craighead v. Missouri Pacific Transportation Company, 195 F.2d 652, 656, the Circuit Court of Appeals for the Eighth Circuit said: 'But it does not offend against the rule announced in Fort Smith Gas Company v. Cloud [8th Cir., 75 F.2d 413, 416, 97 A.L.R. 833] and Coca-Cola Bottling Co. [of Blytheville] v. Doud [189 Ark. 986, 76 S.W.2d 87, 90] to require that when the driver of the motor vehicle sees danger ahead, or it is reasonably apparent if he is keeping a proper lookout, or if he is warned of approaching imminent danger, then the duty is imposed upon him and the reasonable control of the car requires that he immediately bring his automobile under such control as to be able to check the speed or stop it absolutely, if necessary, in the threatened emergency.' Citing Livingston v. Baker, 202 Ark. 1097, 155 S.W.2d 340. Appellant complains of the second part of the instruction, contending that it tells the jury that in certain circumstances the appellant would be negligent as a matter of law. However, it will be observed that the instruction states: 'Therefore, if you find from the evidence in this case that the driver of defendant Missouri Pacific Transportation Company's bus at the time of the alleged collision was aware of or had been advised of impending danger and negligently failed to bring his bus under such control, * * *.' The instruction was approved, practically verbatim, in Livingston v. Baker, supra.
Appellant argues that the court erred in giving appellees' Instruction No. 5, which tells the jury that, in determining whether the bus driver was negligent, the question of whether he violated the law with reference to speed could be taken into consideration. This instruction was justified by the evidence.
It is also maintained by appellant that there is no competent medical testimony showing that Mr. Miller's disability is the result of the collision. Miller was riding on one of the front seats of the bus; there was a metal railing in front of him. The evidence shows that at the time of the collision the bus was traveling at a speed of somewhere between 45 and 60 miles an hour. It struck the Oxner truck broadside with such force that it pushed the truck in front of the bus sideways for a distance of 123 feet before the truck became disengaged from the bus. The wheels on the truck were in contact with the ground to such an extent that, although going sideways, they dug a trench about 4 inches deep. All of this goes to show that the impact of the bus striking the truck was terrific; Miller was thrown from his seat violently, and after the bus came to a stop he was on the floor, unable to move his lower extremities. His legs felt cool and numb and he could not get up; an ambulance took him to Marianna, then he was removed to the hospital in Memphis. He lost consciousness; he was paralyzed from his waist down and could not move his legs or body; he could not control his kidneys or his bowels and it was necessary to insert a catheter and colon tube.
Dr. Bland W. Cannon, of Memphis, qualified as an expert. He is a neuro-surgeon, having received training in neurology at Mayo's Clinic, and received his Master's Degree in neurological surgery at the University of Minnesota. He is a member of the Board of Neurology and a Fellow of the American Surgical College. Dr. Cannon testified that, in his opinion, Miller is unable to do physical work, and that this condition is permanent. He further testified that Miller's condition is complicated by multiple sclerosis; that about 15% of the cases of multiple sclerosis are traced to trauma and in this instance the multiple sclerosis cannot be separated from the injury. He was asked:
...
To continue reading
Request your trial
-
Casey v. Manson Const. & Engineering Co.
...Ry., L. & P. Co., 81 Or. 517, 160 P. 132. It is recognized by judicial decision in 14 jurisdictions: Missouri-Pacific Trans. Co. v. Miller, 227 Ark. 351, 229 S.W.2d 41 (1957); Yonner v. Adams, (3 Storey 229) 53 Del. 229, 167 A.2d 717 (1961); Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 ......
-
Deshotel v. Atchison, T. & S.F. Ry. Co.
...to relief. 2 A few decisions have followed the Hitaffer case. Cooney v. Moomaw, D.C., 109 F.Supp. 448; Missouri Pacific Transp. Co. v. Miller, 227 Ark. 351, 299 S.W.2d 41, 45 et seq.; Brown v. Georgia-Tennessee Coaches, 88 Ga.App. 519, 77 S.E.2d 24; Acuff v. Schmit, 248 Iowa 272, 78 N.W.2d ......
-
Lombardo v. D. F. Frangioso & Co.
...Page v. Scaramozi, 288 S.W.2d 909 (Tex.Civ.App.1956). Fox v. Fox, 75 Wyo. 390, 296 P.2d 252 (1956) (dictum). Mo. Pac. Transp. Co. v. Miller, 227 Ark. 351, 299 S.W.2d 41 (1957). Hoekstra v. Helgeland, 78 S.D. 82, 98 N.W.2d 669 (1959). Yonner v. Adams, 3 Storey 229, 53 Del. 229, 167 A.2d 717 ......
-
Thill v. Modern Erecting Company, 41337
...be doubted that 'love' itself, as expressed in the traditional marriage vows, is altered by sickness or injury.3 Mo. P. Transp. Co. v. Miller, 227 Ark. 351, 299 S.W.2d 41; Yonner v. Adams, 3 Storey 229, 53 Del. 229, 167 A.2d 717; Brown v. Georgia-Tennessee Coaches, Inc., 88 Ga.App. 519, 77 ......