Murphy v. Clayton

• Decision Date: 25 March 1929
• Docket Number: (No. 219.)
• Parties: MURPHY v. CLAYTON.
• Court: Arkansas Supreme Court

15 S.W.2d 391

MURPHY v. CLAYTON.

(No. 219.)

Supreme Court of Arkansas.

March 25, 1929.

Rehearing Denied April 22, 1929.

Appeal from Circuit Court, Columbia County; W. A. Speer, Judge.

Action by Dorris Clayton, a minor, by J. R. Clayton, her next friend, against Sula Murphy. Judgment for plaintiff, and defendant appeals. Affirmed.

Dorris Clayton, a minor, by J. R. Clayton, her next friend, instituted this action against Sula Murphy to recover damages on account of personal injuries alleged to have been sustained by plaintiff in being struck by an automobile of the defendant while crossing a street in the town of Magnolia, Ark.

Plaintiff was a schoolgirl, 10 years of age, and was on her way home from school at the time she was struck. It was the noon hour, and plaintiff had left the schoolhouse and started across the street on her way home when she was struck by the defendant's car. Her right leg was injured, and the character and extent of her injuries will be stated under an appropriate heading in the opinion.

According to the evidence adduced by the plaintiff, Dorris Clayton had left the schoolhouse and started across the street from the north to the south side. When she left the sidewalk, she commenced running; and, after she had gotten beyond the middle of the street, she was struck by the defendant's car and knocked into a ditch on the south side of the street. When she started across the street, she was in front of a car parked there belonging to a Mr. Talley. She did not see the car of the defendant while crossing the street.

According to the testimony of Hosea Manees, a schoolboy about twelve years of age, he saw plaintiff start across the street as the defendant was driving down the street. The defendant struck Dorris in the leg with her automobile, and did not stop, but looked back. Plaintiff was on the south side of the car when struck. It was customary for the school children to cross the street at this place at the noon hour. The defendant was driving her car at about 25 miles per hour, and was going east. On cross-examination he stated the plaintiff was about 50 steps from Mr. Talley's car which was parked on the north side of the street—facing east at the time she was struck. The defendant was nearer the south side of the street than she was to the north side of the street when her car struck the plaintiff.

Elizabeth Dunn, a schoolgirl, was also a witness for the plaintiff. According to her testimony she saw the car of the defendant coming down the street, but did not notice who was in it. It was going fast, and she did not pay any attention to it. The car was going east from the high school, and was passing the grammar school at the time she saw it approaching. She did not see it strike the plaintiff, but saw the plaintiff in the ditch on the right-hand or south side of the street immediately after she was struck. Children living east of the grammar school crossed the street at this place at the noon hour every day. The car was going fast at the time, and this attracted her attention.

B. H. Curry was also a witness for the plaintiff. According to his testimony, while he was eating dinner, he heard some one cry out that a little girl had been run over in the street. He went there and found Mr. Talley picking the little girl up. He looked down the street and saw a car going at the rate of 20 or 25 miles an hour. The little girl looked like she was four or five feet from where she was hit when she was picked up. The street was about 30 or 35 feet wide there, or perhaps a little wider.

The defendant and two companions, who were also school-teachers, were in the car at the time it struck the plaintiff. She and her companions were teachers in the high school, and were going home at the time the car struck the plaintiff. They passed the grammar school, and were going east. They did not see the plaintiff crossing the street. She darted out from in front of Mr. Talley's car, and they were right on her before they saw her. The defendant's car was coasting at the time she passed the street crossing where the accident occurred, and was not going more than 10 miles per hour. The defendant endeavored to stop her car as soon as she saw the plaintiff. She checked it, but did not come to a full stop. She did not know that she had struck the plaintiff, and for this reason continued on her way down the street.

J. M. Talley was also a witness for the defendant. According to his testimony he was sitting in his car facing east at the time of the accident. His car was parked on the north side of the street, and he did not see the plaintiff pass in front of his car. His attention was first directed to the crying of a child to his right and a little southwest of his car. He helped pick up the child, and she was at the time lying to the south and to the rear of his car. He judged her to be about 20 feet from his car when he picked her up, and his car was about 3 feet from the embankment on the north side of the street.

Other facts will be stated or referred to in the opinion. There was a verdict and judgment for the plaintiff in the sum of $400, and the defendant has appealed.

Henry Stevens, of Magnolia, for appellant.

Paul Crumpler and McKay & Smith, all of Magnolia, for appellee.

HART, C. J. (after stating the facts as above).

The first assignment of error is that the evidence is not legally sufficient to sustain the verdict. Under this assignment of error it becomes necessary to consider the question of the defendant's negligence and of the plaintiff's contributory negligence. Drivers of automobiles and pedestrians both have a right to the street, but the former must anticipate the presence of the latter and exercise reasonable care to avoid injuring them. Care must be exercised commensurate with the danger reasonably to be anticipated. What is "ordinary care" is a relative term dependent upon the facts and circumstances of each particular case. The question of contributory negligence is one for the jury, where the pedestrian, in crossing the street at an established crossing, has exercised such care as a person of ordinary prudence would exercise for its own safety under the circumstances. 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; Texas Motor Co. v. Buffington, 134 Ark. 320, 203 S. W. 1013; and Gates v. Plummer, 173 Ark. 27, 291 S. W. 816.

In the last case cited it was expressly held that the facts proved by the plaintiff were sufficient to take the question of the defendant's negligence and the plaintiff's contributory negligence to the jury. The plaintiff was an 11 year old boy, and the court held that, in determining his contributory negligence in attempting to cross a highway in front of an approaching automobile, he should be held to exercise the care and prudence of a boy of that age, and cannot be expected to exercise the same care that an adult should under the same circumstances.

According to the contention of counsel for the defendant, this is a case where a child suddenly darted out in the street from in front of a parked car without warning, and defendant struck her with her car after doing all in her power to check the speed of the car after seeing the plaintiff. Such a finding on the part of the jury would have been conclusive on appeal, but we do not think that the case can be regarded "wholly as a darting-out case." It is not a case where a child was in a place of safety on the sidewalk and made no movement to leave until the automobile was so close upon it that it could not be stopped when the child ran out in the street.

According to the evidence adduced by the plaintiff, the defendant's car was going east at the rate of 20 or 25 miles an hour at the time of the accident. Another witness for the plaintiff testified that the car was going fast, and this attracted her attention. It was at the noon hour, and the grammar school children were accustomed to cross the street there in going to lunch. The view of the driver of the car was not obstructed, except by the car of Mr. Talley, which was parked on the north side of the street facing east, and which was the direction in which the defendant's car was going. Some of the witnesses for the plaintiff say that she was lying in the street on the south side after she was struck. Other witnesses say that the car of the defendant was on the right-hand or south side of the street at the time of the accident. The plaintiff was on the right or south side of the defendant's car when it hit her. According to the evidence of Mr. Talley, the plaintiff was about 20 feet from his car when he picked her up. He did not see the child pass in front of his car. The child was to his right and a little southwest of his car when he picked her up. Other witnesses for the plaintiff stated that the defendant's car was going fast at the time it struck the plaintiff. One of the schoolboys testified that the plaintiff was about 50 steps from Talley's car when the automobile struck her.

Of course all this testimony is contradicted by that of the defendant and her two companions, but the jury were the judges of the credibility of the witnesses. In the...