Missouri Pacific Transportation Company v. Howard
| Decision Date | 07 October 1940 |
| Docket Number | 4-6037 |
| Parties | MISSOURI PACIFIC TRANSPORTATION COMPANY v. HOWARD |
| Court | Arkansas Supreme Court |
Appeal from Nevada Circuit Court; Dexter Bush, Judge; reversed.
Judgment reversed and cause remanded for new trial.
Steve Carrigan and Moore, Burrow & Chowning, for appellant.
Wm. F Denman, for appellee.
OPINION
This appeal is from a judgment for $ 12,000 in favor of appellee to compensate an injury which she sustained as the result of a collision between an automobile, in which she was riding and a passenger bus owned and operated by appellant Transportation Company.
There is a sharp and irreconcilable conflict in the testimony upon every material allegation of fact, but it is conceded that the testimony offered in appellee's behalf was sufficient to make a case for the jury.
According to the testimony offered in appellee's behalf, she and her brother and another couple were riding in a one-seat automobile. All were sober, and no member of the party had drunk anything except soft and non-alcoholic drinks. They had driven into the Town of Prescott, when appellant's bus passed them, and, in doing so, the bus scraped a fender of their car, and was then stopped immediately in front of the car without signal or warning that this would be done.
An instruction numbered 1, given at appellee's request and over appellant's objection, told the jury that if the facts were found so to be, and that appellee was injured without fault or carelessness on her part, a verdict should be returned in her favor.
On behalf of appellant the testimony was to the effect that the parties in the car were driving around on pleasure bent. They had been drinking both beer and whisky. The car was driven by appellee's brother, but was owned by a lady who was a member of the party. Among other stops made was one at a tourist camp, where the owner of the car and appellee's brother attempted to dance, but they were too inebriated to do so. Appellee remained in the car while it was parked at the camp and was seen vomiting.
If this testimony is true, the parties in the car were engaged in a joint enterprise, and the negligence of the driver would be imputed to each of them. Albritton, Admr. v. C. M. Ferguson & Son, 197 Ark. 436, 122 S.W.2d 620.
Other testimony on the part of appellant was to the effect that the bus did not strike or pass the car, but that both the bus and the car were proceeding down the street, and the bus began to reduce its speed, on account of a railroad crossing which it was approaching, when the car ran into it.
A statement signed by appellee was offered in evidence, which attributed the collision to the fact that the brakes of the car did not hold and it ran into the bus, which they could not pass because another car was approaching from the opposite direction. This statement was made and signed while appellee was confined in the hospital. Appellee repudiated this statement, saying that it was made while she was under the influence of morphine and unaware of its recitals. This was, of course, a question of fact which is concluded by the verdict of the jury.
Upon these disputed questions of fact many instructions were given, and a number of others were refused, but none of those given declared the law in relation to the question of a common enterprise. There was sufficient testimony to require the submission of this question, and the jury should have been told that if the occupants of the car were engaged in a common or joint enterprise the negligence of its...
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...140, 124 S.W. 1048." Accord: W. C. Nabors Co. v. Ball Chevrolet Co., 201 Ark. 486, 145 S.W.2d 25 (1940); Mo. Pac. Transportation Co. v. Howard, 201 Ark. 6, 143 S.W.2d 538 (1940); Herring v. Bollinger, 181 Ark. 925, 29 S.W.2d 676 Instructions Numbers 3 and 5 are inconsistent, cannot be read ......
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J. Paul Smith Co. v. Tipton, 5-3148
...recalling the testimony relative to the five cans of beer previously referred to, rely on our opinions in Mo. Pac. Transp. Co. v. Howard, 201 Ark. 6, 143 S.W.2d 538, and Wilson v. Holloway, 212 Ark. 878, 208 S.W.2d 178, to justify the instruction. We cannot agree with appellants that the ab......
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...bent on pleasure, and have become inebriated from drinking, such parties are engaged in a joint enterprise. Missouri Pacific Transportation Co. v. Howard, 201 Ark. 6, 143 S.W.2d 538, Albritton, Admr., v. C. M. Ferguson & Son, 197 Ark. 436, 122 S.W.2d 620. There are other cases involving a g......
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Missouri Pacific Railroad Company v. Howard
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