Missouri Pacific Transportation Co. v. Mitchell

• Decision Date: 19 February 1940
• Docket Number: 4-5781
• Citation: 137 S.W.2d 242,199 Ark. 1045
• Parties: MISSOURI PACIFIC TRANSPORTATION COMPANY v. MITCHELL
• Court: Arkansas Supreme Court

137 S.W.2d 242

199 Ark. 1045

MISSOURI PACIFIC TRANSPORTATION COMPANY v. MITCHELL

4-5781

Supreme Court of Arkansas

February 19, 1940

Appeal from Clark Circuit Court; Dexter Bush, Judge; affirmed.

Judgment affirmed.

Rose Loughborough, Dobyns & House, for appellant.

Dick Jackson and J. H. Lookadoo, for appellee.

OPINION

HUMPHREYS, J.

Four separate suits were brought in the circuit court of Clark county against appellants, one by Mose Mitchell to recover $ 3,000, one by his wife, Florence Mitchell, to recover $ 3,000, one by Mose Mitchell, Jr., to recover $ 3,000, and one by James Robert Mitchell to recover $ 1,500, for injuries received by them in a collision between a passenger bus owned by the Missouri Pacific Transportation Company and being driven by the other appellant, C. W. Raines, an employee of the Missouri Pacific Transportation Company, and a team and wagon owned and being driven by Mose Mitchell.

The negligence alleged in each complaint against appellants as grounds for recovery was:

First, that appellant, Raines, was driving at a dangerous rate of speed, and,

Second, that he (Raines) left the right-hand side of the highway and drove over on the left side of the highway and struck the team and wagon occupied by Mose Mitchell, his wife and two sons, killing one mule, demolishing the wagon and severely injuring each of the occupants.

C. W. Raines filed separate answers to the complaints denying the material allegations therein.

The Missouri Pacific Transportation Company filed separate answers to the complaints denying the material allegations therein and pleaded contributory negligence on the part of the plaintiffs and, as a further defense, pleaded that the collision was unavoidable because just before the collision one of the mules pulling Mose Mitchell's wagon shied, reared up and came down on the bus driver's side of the highway immediately in front of the bus, causing the collision.

The cases were consolidated for the purposes of trial and were submitted to a jury under the pleadings, instructions of the court and the testimony introduced by the parties, resulting in a verdict for appellants against Mose Mitchell, Jr., and James Robert Mitchell, and against appellants in favor of Mose Mitchell for $ 1,500 and in favor of Florence Mitchell for $ 2,000, from which verdicts and judgments against appellants they have duly prosecuted an appeal to this court.

The main contention of appellants for a reversal of the verdicts and judgments is, according to the undisputed evidence, the collision was not caused by Raines negligently driving the bus at a dangerous rate of speed, nor was it caused by Raines negligently driving across the center of the highway to the wrong side thereof and colliding with Mose Mitchell's wagon. Appellants argue that viewing the evidence in the most favorable light to appellees no negligence was shown on the part of appellants. We think otherwise for there is substantial evidence in the record tending to show that immediately before and at the time of the collision C. W. Raines was traveling at a speed of 65 or 70 miles an hour and in attempting to pass a car in front of him which was opposite and even with the wagon he ran across the center black line of the highway and struck the team and wagon. A number of witnesses testified as to the rate of speed Raines was traveling, and that in an attempt to pass the car in front of him he turned to his left across the center of the highway and ran into the wagon. There is little or no dispute in the testimony that when he ran into the wagon, Raines was on the wrong side of the highway, and that Mose Mitchell was driving his wagon on his right side of the highway. Raines' explanation is that he was confronted with an emergency and had he turned to his right he would have run off the dump into a ditch, and had he continued to drive straight ahead he would have run over the car in front of him, which suddenly and unexpectedly slowed up, so he turned to the left in an effort to pass between the car in front of him and the wagon. There is testimony in the record to the effect that he was fifty yards behind the car in front of him as he neared the wagon, and that he did not slow down; that the car in front of him slowed down a little as it neared the wagon, but did not stop. The jury might have concluded from this evidence that Raines could have slowed down himself while covering the distance of fifty yards between him and the car in front of him had he been traveling at a reasonable rate of speed. There is testimony in the record tending to show that Raines had been traveling at the rate of 70 miles an hour before reaching the scene of the collision, and that he had not slowed down when the collision occurred.

J. C Tolleson testified that about four or five miles back from the scene of the collision he himself was traveling seventy miles an hour and the bus passed him and that he continued to follow the bus to within two miles of the scene of the collision both going seventy miles an hour; that he then slowed down to forty miles an hour...