Missouri Pacific R. Co. v. Riley

• Decision Date: 25 April 1932
• Docket Number: No. 271.,271.
• Citation: 49 S.W.2d 397
• Parties: MISSOURI PACIFIC R. CO. v. RILEY et al.
• Court: Arkansas Supreme Court

49 S.W.2d 397

MISSOURI PACIFIC R. CO. v. RILEY et al.

No. 271.

Supreme Court of Arkansas.

April 25, 1932.

Rehearing Denied May 23, 1932.

Appeal from Circuit Court, Garland County; Earl Witt, Judge.

Separate actions by Willie Riley and seven others against the Missouri Pacific Railroad Company. The actions were consolidated for trial, and, from a judgment for plaintiffs, defendant appeals.

Affirmed.

R. E. Wiley, of Little Rock, and Richard M. Ryan, of Hot Springs, for appellant.

Murphy & Wood, of Hot Springs, for appellees.

BUTLER, J.

On the 28th day of March, 1930, two model T Ford cars loaded with students of the Hot Springs Junior High School left the school grounds at the noon hour to be driven about the city during the noon intermission. There was no understanding between the two groups of students, each acting independently, but the common purpose was to return in time to be present at school at the termination of the noon recess. The first car to leave the school grounds was a Ford sedan driven by Paul Pittman, 15½ years old. In this car was another boy, 15 years of age, and three girls, two of them thirteen and one fourteen years old. In the second car, which left the school grounds within a short interval and continued behind the first car at a little distance, was Ewell Johnson, the driver, who was seventeen years old, and two other boys, one fourteen and the other fifteen years of age. The two cars were driven about the town for a short time, and finally entered upon Washington avenue, which runs from east to west. They turned west on this street, thinking it would lead them to a street by which they could return to school, and, after going a short distance, ran into an excavation or cut in which the railroad of appellant company ran, with the result that one of the boys was killed and the other students injured to a greater or less degree.

Eight separate suits were brought against the appellant company to recover damages because of the injuries sustained, which suits were consolidated for trial in the court below, and, as consolidated, are here on appeal from verdicts and judgments in favor of the appellees.

In the complaints the allegation of negligence against appellant was that it made an excavation across Washington avenue about 30 feet deep and as many wide, and left the same unprotected and unguarded. It was further alleged that, while driving along Washington avenue and in the exercise of ordinary care, by reason of the negligence of the appellant in leaving the cut unprotected, the automobiles fell into the cut, demolishing them and causing the injuries to the occupants thereof.

The appellant answered, denying the allegation of negligence, and set up as an affirmative defense (1) that the accident was occasioned by the contributory negligence of the drivers and the occupants of the cars, and (2) that whatever injuries were sustained were due to the negligence of the city of Hot Springs in not placing a barricade or guard to warn persons using the street of the existing danger.

The evidence introduced tended to establish the following facts: Prior to the year 1900, Washington avenue and Hendrick street had been laid off and established, and in that year the predecessor of the appellant company obtained the right from the city to lay its track or railway through the city and across the intersection of Washington avenue and Hendrick street; Washington avenue running east and west and Hendrick street crossing it approximately at a right angle. The line of railway at this point ran about north and south, and at the intersection of the two streets a deep cut was made, taking a part of Hendrick street and crossing Washington avenue. After the excavation was made, Washington avenue seems not to have been worked westward, but was maintained as a street eastward, being worked for a number of years by laborers with pick and shovel to within a short distance of the cut, estimated at from 35 to 65 feet. After the city procured road machinery, the street was worked with tractors and graders. The last time it seems to have been worked was about two or three months before March 28, 1930. Within a short distance of the cut on either side of Washington avenue houses had been built which had been standing for many years, and on the date of the accident in question the roadway was smooth and adapted to vehicular traffic, but had small hills and valleys between, there being two small hills with an intervening valley just before reaching the cut. The crest of the last hill was about 65 feet from the cut.

Forty-two assignments of error were presented in the motion for a new trial, and are argued by appellant in its brief. It will be impracticable to take up and discuss each of these assignments in detail or to review all of the testimony. To do so would unduly extend this opinion, and such evidence as is necessary for an understanding of the case will be briefly set out.

Exception was saved to the qualifications of one of the jurors on the panel because it was shown upon his examination that he was a member of the board of aldermen of the city of Hot Springs. The exception to the competency of the juror was based on the theory that the negligence of the city was the proximate cause of the injuries, and, as the city was interested, the fact that the juror was an alderman disqualified him. It is not necessary to say whether or not this juror was disqualified, for there is no showing of prejudicial error, since it is not shown that the appellant had exhausted all of its peremptory challenges. Polk v. State, 45 Ark. 165; St. L., I. M. & S. R. Co. v. Aiken, 100 Ark. 437, 140 S. W. 698; Caughron v. State, 99 Ark. 462, 139 S. W. 315.

Certain exceptions were saved to the ruling of the court on the admission of the testimony of the witness Annen and of witnesses who were permitted to testify that the two boys who were driving the cars were careful and competent drivers. Annen was asked the question that, if while he was city engineer, he did anything to protect travelers on the avenue from the dangers of the cut, and...