Norman v. Gray

• Decision Date: 09 November 1964
• Docket Number: No. 5-3337,5-3337
• Parties: William T. NORMAN et al., Appellants, v. Mary Elien GRAY, Admx., et al., Appellees.
• Court: Arkansas Supreme Court

Page 489

383 S.W.2d 489

238 Ark. 617

William T. NORMAN et al., Appellants, v. Mary Elien GRAY, Admx., et al., Appellees.

No. 5-3337.

Supreme Court of Arkansas.

Nov. 9, 1964.

Smith, Williams, Friday & Bowen, Little Rock, Wootton, Land & Matthews, Hot Springs, for appellants.

Henry Woods, Little Rock, and Richard W. Hobbs, Hot Springs, for appellees.

HOLT, Justice.

The appellees, Mary Ellen Gray, administratrix of the estate of Martha Imogene Gray, deceased, and Lee Beavers, administratrix of the estate of Verona Beavers, deceased, brought separate actions against the appellants, William T. Norman and Better Built Homes, Inc. These actions, consolidated for trial, resulted from the deaths of appellees' two girls, each twelve years of age, who were killed instantly while riding a bicycle near their homes when they were struck by an automobile driven by appellant William T. Norman, an employee of appellant Better Built Homes, Inc. A verdict was rendered by a jury awarding each of the appellees $35,000.00 against both of the appellants.

For reversal appellants rely upon seven points. They first argue that the court should have directed a verdict for the appellants at the conclusion of all the evidence. We cannot agree when we review the evidence in the light most favorable to the appellees as we must do on appeal. Harkrider v. Cox, 232 Ark. 165, 334 S.W.2d 875. The case at bar was submitted to the jury upon the conflicting theories of negligence and contributory negligence as to how the accident occurred. It was within the province of the jury to believe appellees' theory and disbelieve appellants' version. Therefore, the only question we can consider is whether there is any substantial evidence to support the jury's determination of these issues. We will not disturb the finding of fact by a jury on conflicting evidence if there is any substantial evidence to support the jury's determination. St. Louis-San Francisco R. Co. v. Bishop, 182 Ark. 763, 33 S.W.2d 383.

Appellees' evidence was to the effect that the twelve-year-old girls, while both were riding an unlighted bicycle on the shoulder of Highway #70 about six p. m., were struck from behind by a speeding automobile. The grandfather of one of the children testified that he went to the scene immediately following the accident and observed the position of the children's bodies and that early the next morning he measured distances with a tape measure from the point where their bodies were found by following a trail of blood. According to his testimony, the physical facts established that the point of impact was on the shoulder of the road 5 feet and 3 inches south of the edge of the blacktop pavement and 91 feet east of an intersection. Both the children and appellant Norman were traveling eastward. The physical facts further reflected that the vehicle carried the bicycle and the children's bodies 74 feet before appellant Norman's brakes became fully effective at a point south and near the center line of the highway; that from this point the skid marks indicated appellant's vehicle traveled 241 feet in an arc from the center line to the north edge of the pavement and back to the center line; that as the vehicle veered back to the center line, the bodies of the girls were flung from the hood and windshield of the car to the north shoulder of the highway and came to rest, along with the bicycle, near each other; that one body skidded 92 feet on the pavement and an additional 30 feet on the north shoulder and the other body skidded 30 feet on the pavement and 9 feet on the shoulder. According to him, there was evidence of gouge marks from the bicycle on the pavement indicating the path of the car. He testified that before the continuous skid marks of the automobile began, he found irregular skid marks left by the bicycle tires. He found shattered glass beginning about 53 feet from the point of impact at regular intervals in the eastbound traffic lane to where the car came to rest. His testimony of the physical facts was corroborated in some respects.

According to appellant Norman's theory of the case, he was traveling 40 to 45 miles per hour as he proceeded through the intersection; that as he passed an oncoming car he put his lights on high beam and saw in his eastbound lane an object which was 175 to 200 feet ahead of him and about one-half to two feet from the shoulder of the road. He began to slow up and observed it was either one or two children on an unlighted bicycle; that he then locked his brakes and made a sharp turn to the left or into the westbound lane in order to go around the children; that they unexpectedly turned to their left and into his path where the right front fender of his car struck them at a point about 250 feet [instead of 91 feet as claimed by appellees] from the intersection; that the beginning of glass spray was found 350 feet from the intersection; that the bodies of the girls were carried on his hood and windshield and they were propelled from the car when he cut back sharply into his eastbound lane of the road. There was other evidence, direct and circumstantial, which tended to corroborate the appellant.

Where there are two conflicting versions of the cause of a collision or accident, it is within the province of the jury to resolve the conflict or inconsistencies in the evidence. Jonesboro Coca-Cola Bottling Co. v. Holt, 194 Ark. 992, 110 S.W.2d 535; Schwam v. Reece, 213 Ark. 431, 210 S.W.2d 903; Fields v. Freeman, 17 Ark. 807, 8 S.W.2d 436. It is true that in the case at bar the appellees relied largely upon physical facts and circumstances in establishing the allegations of their complaint. We have reiterated many times that physical facts can be more persuasive than statements by witnesses. East Texas Motor Freight Lines Inc. v. Dennis, 214 Ark. 87, 215 S.W.2d 145. In Pekin Wood Products Co. v. Mason, 185 Ark. 166, 46 S.W.2d 798, we said:

'* * * that a well-connected train of circumstances is as cogent of the existence of a fact as an array of direct evidence, and frequently outweighs opposing direct testimony, and that any issue of fact in controversy can be established by circumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions.'

See, also, Phillips Motor Co. v. Price, Admx., 204 Ark. 827, 165 S.W.2d 251; Arkmo Lbr. Co. v. Luckett, 201 Ark. 140, 143 S.W.2d 1107.

In the case at bar the issue of appellants' negligence was properly submitted to the jury since there was substantial evidence to sustain its verdict in resolving the two conflicting theories.

Appellants contend in their next three points that there was no evidence to justify the court giving instructions on the duty of a driver (1) to keep a proper lookout, (2) to keep the vehicle under proper control, and (3) on the subject of speed. We think the court properly submitted these issues to the jury. Appellants argue that since the bicycle had no light or reflectors, appellant Norman had met the requirement to keep a proper lookout. We have often said that a violation of a traffic statute is only evidence of negligence. The unlighted bicycle was a proper matter for the consideration of the jury, however, as we said in Duckworth v. Stephens, 182 Ark. 161, 30 S.W.2d 840:

'* * * the failure to attach lights to the buggy was a matter of proper consideration, but it did not relieve Duckworth from the duty of acting as a reasonably prudent person in the operation of his car and of keeping such lookout as prudence for his own safety and humanity for the safety of others would dictate.'

Appellant Norman himself testified that he was 175 or 200 feet from the children on the bicycle when he first observed them in his traffic lane. There was evidence that this area was somewhat congested...