Morel v. Lee

Decision Date22 December 1930
Docket Number62
Citation33 S.W.2d 1110,182 Ark. 985
PartiesMOREL v. LEE
CourtArkansas Supreme Court

Appeal from Union Circuit Court, Second Division; W. A. Speer Judge; modified and affirmed.

STATEMENT BY THE COURT.

This appeal comes from a judgment for damages against appellant for the negligent killing of appellee's four-year-old son while operating an automobile on the streets of El Dorado.

The facts substantially are that appellant, Mr. Morel, and his chauffeur were coming down Euclid Avenue, into town at the rate of 10 to 15 miles per hour when the injury occurred. A car was parked by the curb on the east side of the street with a Dodge sedan standing fronting it. When the sedan started to drive around the other car, the driver saw the appellant's car coming north and not thinking there was room for three cars abreast to pass, stopped his car. An eleven-year-old boy, who had been with the little boy who was killed, and another six-year-old boy, ran out from behind the standing cars and on across the street to the other side. The driver of appellant's car saw and watched him until he got across the street, fearing lest he should turn and attempt to come back. The little boy came from behind the standing cars running across the street, and at about 25 feet from the standing cars was struck and killed by appellant's car. The driver of appellant's car did not see the little fellow before the car struck him, nor did appellant see him until just as he passed in front of the car, too late to give any warning to the driver or do anything to prevent the injury.

No witness saw the baby boy, in fact, until he was just about in front of the car.

Mr Lasiter, assistant cashier of the First National Bank of El Dorado, testified that he lived on Euclid Avenue, opposite the Lacey house, but further south, and that Roy Lee, father of the little boy killed, lived back of his house in the same block. That his boy and the little Lee child were across the street in front of the Lacey house when he went out on his front porch and called them to come home; said he turned back and opened the screen door to go into the house and, looking back to see if the children were coming, saw his boy on the home side of the street standing at the curb, and the little Lee child, who was three and one-half or four years old, was right in front of the automobile, three or four feet in front of it. Another step or two would have taken him out of the path of the car. He was running from the east side to the west side of the street. The car was not driving at an excessive rate of speed; doesn't think the driver saw the child as he did not check the speed or make any effort to turn to the left and avoid striking him; doesn't think he felt the impact, as he went on about 25 feet after striking the boy. He stepped the distance from the Lacey driveway to where the child was struck, allowing four feet for the space occupied by the parked car, and estimated it at 25 feet. The boy was running at the rate of five or six miles an hour. Witness' boy, who was out in the street with the Lee child, was eleven years old and his other boy, who did not go across the street, was six years old. He didn't see his eleven-year-old boy cross the street after he called them. His boy could run faster than the little boy; said a Hudson car with four-wheel brakes running 15 miles per hour could be stopped in the length of the car.

The father of Roy Lee testified that he was an accountant and auditor with a salary of $ 275 per month since June 1, 1929 $ 200 a month before, and had made $ 400 per month when times were better; had two other children, girls, younger than the four-year-old child killed. He also testified about the probable earnings of a boy, the age of the little fellow killed, and the funeral and expenses incident thereto cost $ 265; that he expected to send his boy through high school but could not contemplate a college education for him at his salary.

The court instructed the jury, giving over appellant's objections, instructions Nos. 1 and 2, and from the judgment on the verdict in appellee's favor the appeal is prosecuted.

Judgment affirmed.

John M. Shackleford and Buzbee, Pugh & Harrison, for appellant.

Robert A. Kitchen and Surrey E. Gilliam, for appellee.

OPINION

KIRBY, J., (after stating the facts).

Appellant insists that the killing of the child was an unavoidable accident, and that the court should have directed a verdict and erred in giving said instructions, and in any event that the damages awarded are excessive.

No witness saw the little boy in time to give warning or do anything to prevent his being struck by the automobile, in front of which he ran following the larger boy across the street. The man who called the boys, his own eleven-year-old son and the little fellow playing with him, to come home from the opposite side of the street, and turned after starting back into the house to see if they were coming, saw him about three or four feet in front of the car when it was inevitable that he would be run down. The owner of the car didn't see him until he was in front of the car; while the driver, watching the larger boy, who was ahead of the small boy, from the time he crossed in front of the car until he was past all danger, did not see the small boy until after he had been struck by the car. The law of the case has been well settled in the several decisions of this court defining the relative rights and reciprocal duties of persons using the public streets and highways as pedestrians or in operation of automobiles and other cars or vehicles thereon, each being bound to the exercise of ordinary care for his own safety and the prevention of injury to others in the use thereof. Millsaps v. Brogdon, 97 Ark. 469, 134 S.W. 632, 32 L. R. A. (N. S.) 1177; Minor v. Mapes, 102 Ark. 351, 144 S.W. 219, 39 L. R. A. (N. S.) 214; Butler v. Cabe, 116 Ark. 26, 171 S.W. 1190, L. R. A. (N. S.) 1915C, 702; Texas Motor Co. v. Buffington, 134 Ark. 320, 203 S.W. 1013; ...

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1 cases
  • Morel v. Lee
    • United States
    • Arkansas Supreme Court
    • 22 Diciembre 1930
    ... 33 S.W.2d 1110 182 Ark. 985 MOREL et al. v. LEE. No. 62. Supreme Court of Arkansas. December 22, 1930. Page 1111 Appeal from Circuit Court, Union County; W. A. Speer, Judge. Action by Roy Lee, administrator, against Charles Morel and others. Judgment for plaintiff, and defendants appeal. M......

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