Pollock v. Hamm

• Decision Date: 21 May 1928
• Docket Number: (No. 466.)
• Citation: 6 S.W.2d 541
• Parties: POLLOCK et al. v. HAMM.
• Court: Arkansas Supreme Court

Page 541

6 S.W.2d 541

POLLOCK et al. v. HAMM.

(No. 466.)

Supreme Court of Arkansas.

May 21, 1928.

Appeal from Circuit Court, Sebastian County; J. Sam Wood, Judge.

Action by Bennie Hamm against Al Pollock and others. Judgment for plaintiffs, and defendant appeals. Affirmed.

Daily & Woods, of Ft. Smith, for appellants.

Pryor, Miles & Pryor, of Ft. Smith, for appellee.

HUMPHREYS, J.

Appellee, a young woman 26 years of age and an employee of the First National Bank, while on her way to lunch was run over and injured at the intersection of North E and Seventeenth streets, in the city of Ft. Smith, by an automobile truck owned by appellants which was being driven by a negro, Ike Zackery, while delivering goods for them.

Appellee got off an east-bound street car when it stopped at the intersection of said streets in a residential portion of the city and, in accordance with a general custom, passed north in front of the street car in the direction of her home. This action on her part was contrary to the traffic ordinance of the city which required pedestrians after alighting from street cars to proceed to the right-hand curb of the street. When starting to get off the car appellee looked west and, as she alighted, east to see whether any automobiles were approaching from either direction, but did not observe this truck or any other.

The testimony introduced by appellee tended to show that just after she passed beyond the line of the street car, she was struck by the truck, which approached rapidly without warning from the east on E street and on the left or north side of the standing street car, and hurled to the gutter.

The testimony introduced by appellants tended to show that the truck slowly approached the street car to the rear and left-hand side thereof, and that appellee passed in front of the street car and east to a distance of about 25 feet, and while hurriedly crossing Seventeenth street, between the street car tracks, sprang in front of and was struck by the truck which the driver had turned to the south around the street car in an effort to get on the right-hand or south side of Seventeenth street. This action on the part of the driver of the truck was contrary to the traffic ordinance of the city as well as the state traffic law which prohibited drivers of motor vehicles from overtaking and passing any street car proceeding in the same direction when the street car had stopped and when a traversable portion of the highway existed on the right of said street car, and which restricted the speed at which drivers might drive motor vehicles, and which required them to stop in 10 feet in the rear of street cars when they had stopped until alighting passengers could reach the adjacent sidewalk.

As a result of the collision, appellee was removed to a hospital in an unconscious condition where she was compelled to remain three or four weeks for treatment. An X-ray examination developed that one of her toes was broken, one of her shoulders slightly fractured, and her pelvis fractured on one side. She also received a number of cuts and bruises. Her hips and thigh were placed in a plaster paris cast. She suffered a great deal and still suffers. The result was a tilted pelvis which caused the shortening of three-fourths of an inch of one limb and the probable interference with or prevention of the normal process of childbearing.

Appellee brought suit against appellants in the circuit court of Sebastian county, Ft. Smith district, to recover damages for the injuries, alleging that she received them on account of the negligent operation of the truck by their driver.

Appellants filed an answer to the complaint denying negligence on the part of their driver in operating the truck, and interposing the further defense of contributory negligence on the part of appellee.

The cause was submitted upon the issues joined by the pleadings, the testimony adduced by the parties responsive thereto, and the instructions of the court, which resulted in a verdict and consequent judgment in favor of appellee for $10,000, from which is this appeal.

Appellants' first contention for a reversal of the judgment is that the verdict was excessive. According to the weight of the evidence, appellee's injury to the pelvis is permanent, the tilted position thereof resulting in a shortening of one of the limbs and producing a condition which may interfere, and probably will, with the normal process of childbearing. In view of the extent and permanency of the injury, the amount awarded is not excessive.

Appellants' next contention for a reversal of the judgment was the giving of instructions Nos. VII, VIII, and IX with reference to violations of the state traffic law, and the refusal to give instruction No. XIV, requested by appellants. Instruction No. VII is as follows:

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