Pine Bluff Co. v. Whitlaw

• Decision Date: 24 January 1921
• Docket Number: 120
• Citation: 227 S.W. 13,147 Ark. 152
• Parties: PINE BLUFF COMPANY v. WHITLAW
• Court: Arkansas Supreme Court

227 S.W. 13

147 Ark. 152

PINE BLUFF COMPANY v. WHITLAW

No. 120

Supreme Court of Arkansas

January 24, 1921

Appeal from Jefferson Circuit Court; W. B. Sorrells, Judge affirmed.

STATEMENT OF FACTS.

Kathleen L. Whitelaw brought this action against the Pine Bluff Company to recover damages alleged to have been sustained by her from a collision between the automobile in which she was riding with its owner and a street car at a street crossing in the city of Pine Bluff, Arkansas. On the 9th day of December, 1919, at about 1:30 o'clock in the afternoon Kathleen L. Whitelaw, while riding in an automobile driven by W. P. Keith, was severely injured by a collision between the automobile and a moving street car at the intersection of Pine Street and Sixth Avenue, in Pine Bluff, Arkansas. Kathleen L. Whitelaw, at the time she was injured, was sitting on the front seat with W. P. Keith, and he was taking her to the Watson Chapel School to take a position as teacher. W. P. Keith was superintendent of public schools of Jefferson County and had known the plaintiff for about fourteen years. The plaintiff was about twenty-five years of age at the time she was hurt and resided in the city at 901 Pine Street. The car was being driven north on Pine Street and Professor Keith intended to cross Sixth Avenue to go over on Fifth Avenue because it was better driving on that street. The street car track was on Sixth Avenue, which runs east and west.

According to the testimony of Professor Keith, he understood operating an automobile, and had been driving the one in question since March 20, 1917. Previous to that time he had driven a Ford for about twenty months. On the day in question when they got nearly to Sixth Avenue, they met a Ford car and a Ford delivery truck. When he met these cars, Professor Keith slowed down until he was just barely moving good. He met the last car just south of Sixth Avenue. When he went into Sixth Avenue, he was going very slowly. Just as he got to Sixth Avenue, Professor Keith applied his brakes and then looked west on Sixth Avenue to see if there was a car coming east. He did this because he would have to cross the south track first. He saw there was no car coming on the south track and then looked east on Sixth Avenue. He did not see any car in that direction and took his foot off of the brake. He kept his foot on the brake until he was sure there was no car approaching from either direction and then took his foot off of the brake and allowed the automobile to proceed across the street car tracks. At this time he looked across Sixth Avenue north on Pine Street to see if there was another automobile coming from that direction. Just as he was crossing the south track he heard the clicking of the trolley overhead and immediately looked up to see from which direction a car was coming. He was taken by surprise because he had just looked in both directions to see if there was a car in sight and had not seen any. When he looked up at the overhead wire, he found out that the car was approaching on the north track going west on Sixth Avenue. Professor Keith saw that the car was approaching at a pretty swift rate of speed, and that he would have to get out of its way because the motorman did not see him. The motorman was standing on the front of the car but had his face turned toward the north and was not looking in Keith's direction. The left side of the motorman's face was turned toward Keith as if he might be turning the handle of the fare register. Keith changed his gear from high to second and put on all the power he could, but the car hit his automobile before he could get across the north track. The car was nearly across the north track before the street car struck it. Keith was listening in order to ascertain if a street car was approaching from either direction on Sixth Avenue and did not hear any gong or other warning of its approach. The first intimation he had of the approach of the street car was the clicking of the trolley as above stated. The automobile was approaching the street crossing at an angle and he was going across Sixth Avenue facing northeast. Keith could see east on Sixth Avenue through his wind shield and curtains and said that the only way he could account for not having seen the street car was that its color blended with the front of Davis Floral Company, situated on Sixth Avenue. As he approached the crossing, Miss Whitelaw took her glove and rubbed the mist or moisture off of the wind shield.

According to the testimony of Kathleen L. Whitelaw, the plaintiff, she knew that Professor Keith was the owner of the automobile and understood that he was a careful driver. She was being taken by Professor Keith in his automobile to take a position as teacher at Watson Chapel School. As they approached the street car crossing on Sixth Avenue, Mr. Keith was sitting on the left hand side of the front seat driving the automobile and she was sitting beside him on the right. She did not hear the street car approaching the crossing and did not hear it give any warning of its approach. She did not see the street car until she felt the jerk of the automobile just before the street car struck it. It was only an instant after she saw the street car until the crash came, and she was knocked unconscious and severely injured. The plaintiff saw Mr. Keith look in both directions for approaching street cars as they turned into Sixth Avenue, and she also looked for approaching cars, but did not see any. She was asked how she accounted for the fact that she did not see the street car when she looked east and testified that she did not know.

On the part of the street car company, it was shown that Professor Keith admitted to several persons just after the accident that it was due to his fault or negligence in driving the automobile. It was also shown that any one in the automobile by looking east could have seen the approaching car for more than a block before it reached the crossing on Sixth Avenue.

According to the testimony of the motorman, he saw the automobile as it turned into Sixth Avenue, and as he got nearer to it he could see the driver and could tell that he had seen the street car. From the way the automobile was being driven the motorman came to the conclusion that its driver was going to continue east on Sixth Avenue to Main Street, as that was the way many people did. He just let the street car run along and when he got nearly even with Pine Street, the automobile shot right in front of the street car, and it was done so quickly that the motorman did not have time to stop the street car.

Other evidence tended to corroborate the testimony of the motorman.

The jury returned a verdict in favor of the plaintiff in the sum of $ 7,500, and judgment was rendered accordingly. The defendant has appealed.

Judgment affirmed.

Bridges & Wooldridge, for appellant.

1. The judgment is clearly contrary to the evidence and the law, as plaintiff was guilty of such negligence as to bar her right of recovery. Both she and Keith, the driver, were guilty of negligence, and a recovery should not be allowed. 136 Ark 23; 102 Id. 351-4. The driver did not use due care and caution. 137 Ark. 217-224-5-6. A passenger can not rely implicitly on the care of the driver; he must use ordinary care and watchfulness. 29 Cyc. 551; 120 N.Y. 290; 24 N.E. 449; 17 Am. St. Rep. 648; 64 P. 624; 76 S.W. 973; 29 Cyc. 351. Plaintiff and Keith, the driver, were both guilty of carelessness and negligence and want of ordinary care. They kept no lookout and did not use the slightest care. It is the duty of a guest to exercise at least ordinary care for his safety and appellee was clearly guilty of contributory negligence. 136...