Pankey v. Little Rock Railway & Electric Company

• Decision Date: 15 March 1915
• Docket Number: 243
• Citation: 174 S.W. 1170,117 Ark. 337
• Parties: PANKEY v. LITTLE ROCK RAILWAY & ELECTRIC COMPANY
• Court: Arkansas Supreme Court

174 S.W. 1170

117 Ark. 337

PANKEY v. LITTLE ROCK RAILWAY & ELECTRIC COMPANY

No. 243

Supreme Court of Arkansas

March 15, 1915

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge reversed.

Judgment reversed and cause remanded.

Manning Emerson & Morris, for appellant.

1. It was error to exclude the city ordinances sought to be introduced by the appellant. It was in proof that the car was running at the rate of twenty miles per hour, and that the place of the injury was within the city limits. The speed ordinance was admissible. Running a vehicle at a rate of speed in excess of that prohibited by an ordinance or statute is negligence.

Section 1859 of the ordinances was clearly relevant and material. Appellant had testified that he was listening for the street car, and another witness had stated that the gong had not been sounded when the car approached Prospect Avenue, nor had the motorman continued to sound the same until the crossing had been passed.

2. The court erred in refusing to instruct the jury as requested by appellant that a person, in driving his vehicle on the street railway track is not a trespasser. 70 Ark. 572; 69 Ark 289-294.

Instruction 3, given at appellee's request, errs in telling the jury that one operating a street car and seeing another in danger upon the track has a right to presume that the other would leave the track in time to avoid being injured. It is a question for the jury to decide whether the person operating the car acted prudently or negligently in assuming under the circumstances that the party on the track would leave in time to avoid injury. 102 Ark. 417; 99 Ark. 422.

It was clearly erroneous to charge the jury that unless appellant was driving upon the right-hand side of the street, he was presumed to be guilty of negligence.

Instruction No. 9, given at appellee's request, errs (1) in saying that appellant assumed the risk, a doctrine which applies only in cases between master and servant, and (2) in saying that if he saw the car approaching and attempted to cross the track, he could not recover.

Rose, Hemingway, Cantrell, Loughborough & Miles, for appellee.

1. The court's action in excluding the ordinances offered in evidence was justified, in that these ordinances were not applicable to the case.

While in a broad sense street cars would come within the language of the speed ordinance, yet it is plain from the difference in their construction and method of operation from automobiles, etc., that they were not intended to be included in the ordinance.

Section 1859 of the ordinances does not apply, because there was no crossing at the junction between Fairfax Avenue and Prospect Avenue, and for the further reason that the collision was not at the junction point between the two avenues, but, according to appellant's own testimony, the distance of a city block from it.

2. The court correctly modified the first instruction requested by appellant. As asked, it embodied a statement of facts which, if found, constituted negligence, making no mention of the effect of finding contributory negligence. There was no contention that appellant was a trespasser, and for the court to have instructed the jury that he was not a trespasser would have been abstract and misleading. Instruction 3, given on behalf of the appellee, is a correct statement of the law as approved by this court. 64 Ark. 420; 108 Ark. 95-103. There was no error in the instruction with reference to the duty of appellant to keep to the right side of the street, etc. 143 P. 458. The ninth instruction, given for appellee, was justified by the facts and circumstances shown in evidence. 80 Ark. 169; 88 Ark. 524-530.

OPINION

MCCULLOCH, C. J.

This is an action to recover damages from the street ear company for personal injuries inflicted in the operation of a car. The plaintiff, S. H. Pankey, was a mail carrier on December 24, 1909, when he received the injuries specified in the complaint, and claimed that the servants of the defendant, in operating a car, caused it to collide with the mail cart in which plaintiff was riding, and to overturn the cart and throw him out and injure him. The defendant denied the allegations of negligence and the trim before the jury resulted in a verdict in favor of the defendant.

The plaintiff's narrative of the facts is as follows: He was driving west on Prospect Avenue, in the city of Little Rock, lake in the afternoon--about 5 or 5:30--on December 24, 1909, and was standing on the step of the mail cart, where the mail carrier is accustomed to ride, when the street car struck the cart and overturned it. There is a double track of the street railway at that place. On the north side the space between the north rail and the curb is about three and one-half feet, and the space between the south rail and the south curb is about thirteen and three-fourths feet, thus giving space for other vehicles to travel only on the south side of the street ear rails. The car which inflicted the injury was coming from the west, and there was a down-grade around a curve. The evidence shows that from the point where plaintiff was struck, an approaching car could be seen something less than a block. Just around the curve, Fairfax Avenue runs into Prospect Avenue from the south side, but does not cross it. The plaintiff testified that he stopped his cart at a mail box on the south side of the track to deliver a package at a residence across the avenue, and that after returning to his cart, he found that he had a registered package for a lady who lived a short distance farther west on the north side of the track. He says that he got in his cart and started diagonally across the street to reach the residence of this lady, Mrs. With-erspoon, and when he had crossed the south rail of the track his registered mail pouch slipped from the top of the pile, that his attention was diverted in trying to catch hold of the pouch and restore it to its place, and that in this way he slackened his hold on the lines and lost control, for the moment, over the movements of his horse. His mail was piled very high, so as to obstruct his view to some extent, and when he got the pouch replaced, he saw the street car coming rapidly about three-fourths of a block away and he whipped up his horse and drew him over to the left in an attempt to get the horse and cart off of the track, but that before he could succeed in doing so, the car struck the cart and overturned it. He states that he whipped up his horse and drew him over to the left, and made outcries to attract the attention of the motorman. His testimony is that the car was running at a speed of about twenty miles an hour, and in this he is corroborated by other witnesses. His testimony, and that of other witnesses, tends to establish the fact that the gong was not sounded as the car approached Fairfax Avenue, and the evidence is sufficient to justify the conclusion that if the gong had been sounded, the plaintiff might have noted the approach of the oar in time to have started about getting his horse and cart off of the track at an earlier moment.

On the other hand, the testimony, adduced by the defendant tends to show that plaintiff got his horse and cart off of the track before the collision occurred, and then backed into the car, and that he stepped off of the cart before the collision. In other words, the testimony of the defendant completely exonerates its employees from the charge of negligence, and supports the verdict in favor of the defendant.

It is contended in the first place that the court erred in excluding from the consideration of the jury two ordinances of the city of Little Rock, one relating to the speed of vehicles propelled along the streets, and the other imposing a duty on the street car company of sounding the gong at street crossings. The ordinances excluded by the court read as follows:

"That no automobile, locomobile or horseless vehicle propelled by the use of electricity, gasoline or steam, by whatever name such vehicle may be known, whether used for purposes of pleasure or business, shall be moved or propelled along, over or upon any public street, avenue, boulevard or other public place in that part of the city. bounded on the north by the Arkansas River, on the east by Commerce Street, on the south by Tenth Street, and on the west by the west side of Broadway, and also the city park and free bridge across the Arkansas River, at a rate of speed exceeding eight miles per hour and elsewhere in the city exceeding fifteen miles per hour. Any person violating any of the provisions of this ordinance shall, upon conviction, be subject to a fine of not less than five, nor more than twenty-five dollars (section 914 Campbell & Stevenson's Digest of the City Ordinances of Little Rock)."

"Sec. 1859. Same--Bells or (Gongs on Cars.--That every street railway company operating its cars in the streets or other public places of the city of Little Rock shall place a suitable bell or gong on each of such cars, and cause the same to be rung or sounded on each car approaching or passing another car, or approaching or passing any street crossing or other regular crossing, such ringing or sounding to be commenced at a distance of not less than fifty feet from the car or crossing approached, and continued until such car or crossing has been passed."

The circuit court ruled that the first of the ordinances copied above did not apply to street railways, and we are of the opinion that that conclusion is correct. The language of the ordinance does not leave the question entirely free from doubt, but street cars rather stand in a class to themselves so far as concerns the mode of operation, and we think that the language used shows with...