Ozan Lumber Co. v. Tidwell

Citation198 S.W.2d 182
Decision Date16 December 1946
Docket NumberNo. 4-8021.,4-8021.
PartiesOZAN LUMBER CO. v. TIDWELL.
CourtSupreme Court of Arkansas
198 S.W.2d 182
OZAN LUMBER CO.
v.
TIDWELL.
No. 4-8021.
Supreme Court of Arkansas.
December 16, 1946.

Appeal from Circuit Court, Nevada County; Dexter Bush, Judge.

Action by Clarence Tidwell against Ozan Lumber Company for personal injuries alleged to have been sustained in an automobile accident. From the judgment, the defendant appeals.

Affirmed on remittitur, otherwise reversed and remanded.

McRae & Tompkins, of Prescott, and S. Hubert Mayes, of Little Rock, for appellant.

William F. Denman, of Prescott, and Tom W. Campbell, of Little Rock, for appellee.

MILLWEE, Justice.


Appellee, Clarence Tidwell, as plaintiff in the Circuit Court, recovered judgment for $15,000 against appellant, Ozan Lumber Company, for personal injuries alleged to have been sustained in a collision between a truck driven by appellee and a truck and log trailer operated by C. M. Kirby as the agent and servant of appellant. At the conclusion of the testimony on behalf of appellee, and at the conclusion of all the testimony, appellant requested an instructed verdict in its favor. The refusal

Page 183

of the trial court to grant these requests is the first assignment of error urged by appellant for reversal of the judgment.

In pursuance of this contention it is first insisted that the only conclusion warranted by the evidence, even when given its strongest probative force in favor of appellee, is that appellee was guilty of contributory negligence as a matter of law.

The collision occurred on a gravel highway known as the South Cale Road at a point about two and one-half miles south of Prescott, Arkansas. Appellee testified that on the afternoon of August 27, 1945, he was driving his light "pick-up" truck on the Blakely Mill Road which intersects the South Cale Road at the point where the collision occurred. As he approached within about 100 feet of the intersection to drive to Prescott, he saw the cab of a truck being driven by Kirby from Prescott at a fast rate of speed approaching the intersection. Another car had entered the intersection about 80 feet ahead of appellee going toward Prescott. After appellee passed some lumber stacked in the corner of a field near the intersection, and when he was about 20 feet from the intersection, he again saw the approaching truck about 100 feet up the road. He approached the intersection in second gear, stopped his truck and turned off the motor with the front end of the truck extending about 12 inches over the edge of the road Kirby was traveling. The log truck was about 60 feet away when he stopped, and there was nothing to obstruct the view of either driver at this point.

The log truck was equipped with rear dual wheels, which extended further out from the truck than the front wheels. The front wheel of the log truck missed the truck driven by appellee, but the right rear wheel caught the front part of appellee's truck knocking it around, and resulting in appellee's injuries. Appellee also testified that his brakes were in good condition and that he could have stopped his truck within 10 feet at the speed he was traveling as he approached the intersection.

John A. Davis, a Prescott merchant, testified he was walking to his car near the Blakely millyard when he stopped to talk with appellee shortly before he started toward the intersection. This witness corroborated the testimony of appellee as to the position of his truck immediately before the collision and the view of one approaching the highway. He also testified that the road was 18 feet wide where the collision occurred. The log truck stopped 50 or 60 feet from the intersection after the collision and the front end of appellee's truck was struck by the right rear dual wheel of the log truck.

It is earnestly contended by appellant that under this testimony we should hold appellee guilty of contributory negligence as a matter of law in proceeding to the edge of the highway when he could have stopped his truck at a safe distance from the road, and thereby avoided the collision. Appellants say this is especially true in view of the testimony of Kirby that the right wheels of the truck he was driving were 3 or 4 feet from the right edge of the road, and that appellee's truck struck the rear wheel of his truck. It is insisted that it must be deduced that appellee continued into the highway into the truck driven by Kirby, and that any other conclusion is contrary to the physical facts and in violation of the rule followed in Missouri Pacific Railroad Co. v. Hancock, 195 Ark. 414, 113 S.W.2d 489.

We cannot agree with this contention. The deductions we are asked to make are dependent upon the truthfulness of the witness Kirby, who contradicted the testimony on behalf of appellee as to how the accident occurred. It was the province of the jury to consider this testimony along with all the other facts and circumstances in determining whether appellee was guilty of contributory negligence. We are unwilling to say that a driver is guilty of contributory negligence as a matter of law in stopping his truck with the front end 12 inches over the edge of a...

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