Self v. Kirkpatrick

• Decision Date: 15 November 1937
• Docket Number: 4-4789
• Citation: 110 S.W.2d 13,194 Ark. 1014
• Parties: SELF v. KIRKPATRICK
• Court: Arkansas Supreme Court

110 S.W.2d 13

194 Ark. 1014

SELF v. KIRKPATRICK

4-4789

Supreme Court of Arkansas

November 15, 1937

Appeal from Columbia Circuit Court; L. S. Britt, Judge; affirmed.

Judgment affirmed.

Ezra Garner and Donham & Fulk, for appellant.

McKay & McKay, for appellee.

OPINION

MEHAFFY, J.

This action was commenced by the appellee to recover for the death of a child four years old, who was struck and killed by an automobile. The father of the child, as administrator of the estate, brought suit to recover for the benefit of the estate, in the sum of $ 400, and to recover in his own right, for loss of services and funeral expenses, in the sum of $ 2,600.

There was a jury trial and verdict and judgment for $ 2,600 for the father, and there was nothing awarded to the estate. The case is here on appeal.

On February 4, 1935, the appellant, a traveling salesman, was driving from Texarkana, Arkansas, to Homer, Louisiana, and his route took him through the city of Magnolia, Arkansas. He left Texarkana about one o'clock in the afternoon, and the accident occurred about three-fifteen as he was approaching Magnolia on highway No. 82.

The appellant's answer denied all the material allegations of the complaint as to his negligence, and alleged that the appellee was guilty of contributory negligence in permitting his child to play and run about the public highway, and to run in, upon and across the same, without exercising proper care and caution for the protection and safety of such child.

Eugene Kirkpatrick, father of the child, testified in substance as follows: That he was the father of Edgar Martin Kirkpatrick and administrator of his estate; that for the past three years he had lived one mile out on the Waldo highway; when he moved there he built a fence on the south side and a gate but did not put a lock on the gate; he made these improvements to keep his children in the yard; at the time he had seven children, the oldest being twenty-one years of age, and the youngest four years and three months. He was not present when the child was hurt; the child that was killed was four years old; he went to the hospital immediately after being notified of the accident, saw the child and he was waving his arms and seemed to be in great pain; later on he examined the highway; it is twenty-one steps from where appellee's driveway joins the highway to the filling station pumps; it is possibly 200 yards from the driveway back on the other side of Cochran's house; the highway is straight on to the railroad, and anyone could see at least 400 yards; he examined the tracks; the main road was dry and graveled; there was a pole thirty-seven steps from his driveway to where appellant turned across the highway where the child was hit and knocked fourteen steps into the ditch. A person coming from Waldo to Magnolia would pass appellee's driveway on the left; you could easily see 200 yards; the burial expense of the child was $ 100. This is a public highway and there is lots of traffic there; the accident happened about three-thirty in the afternoon; witness saw where Mr. Self struck the gravel, which was about ten feet from where he hit the child; when he got to the hospital the child was on the table and he stayed there until they took him into the operating room, about forty minutes. He examined the tracks; the fence is thirty-nine inches high. His older children could open the gate; he never allowed them to play there; they played back of the house; he frequently sent his older children across the road to Harriman's store, but never allowed his younger children to go; the skidding of appellant's car was a gradual skid not from throwing on the brakes; the back end swung around east and then south; he never allowed his children to play there; his wife looks after things at the house; the child was very healthy and bright.

Ralph Harriman testified in substance that he lived at the cotton mill directly across the street from a garage; had lived there eight years; saw the car strike the child; he was standing in front of his station and the child was also there; saw the car coming down the road when it was about 185 or 186 steps away; does not know how fast it was going; but it was going very fast and above the average; when the child started across the road the appellant's car was about 185 steps up the road; the child went directly across the highway and never did turn back; cannot say whether appellant slowed up until he hit the child; he was coming down the center of the road, and when about 34 or 35 steps back, he turned to the extreme left side of the road toward Kirkpatrick's house; when the child was struck he was on the extreme left shoulder; the child was not in the habit of crossing the highway. Witness stepped the distance the child was thrown after being struck by the automobile; there were other children on the other side of the automobile. The child was by the north pump even with the curb; he called his attention to the car which was coming, but did not try to stop him because he did not think he was in any immediate danger; he was about ten feet from the child; when he called the child's attention to the car, he was half way across the street; does not remember what appellant said when witness picked the child up; the car was about 40 degrees angle across the road headed east; the children on the other side of the road were about seven to twelve years old.

Miss Gibland Cochran testified in substance that she lived north of where Kirkpatrick lived; was at home in the house at the time of the accident; noticed the car when it passed; it was going about fifty miles an hour; it was going at such a rate that it attracted her attention; she did not see the accident.

Fred Dean testified that he went to the hospital and the child was groaning and tossing his arms acting like he was in great pain.

J. M Self, appellant, testified in substance that he is a salesman twenty-nine years old, and lives at Jackson, Mississippi; the accident happened on February 20, 1935; he was alone driving a 1934 Chevrolet coach, which was about nine months old; the car was in perfect condition; he left Texarkana that day about one o'clock in the afternoon going to Homer, Louisiana; it is about 60 miles from Texarkana to Magnolia; the accident occurred at about three-fifteen as he was coming into Magnolia; was driving 20, 25 and 30 miles an hour; when he approached the Harriman filling station about 150 yards away, he was driving 35 or 40 miles an hour; at the top of the incline he saw these children at the left of the road and began to check the speed of his car and blow the horn; there were weeds on the side of the road and he could not see the filling station; as he got to where he could see the station he further checked the speed of his car; did not see the little boy; if he had seen the child about 30 yards from him as he came around 35 or 40 miles, he would have checked his speed; when he first saw the child he was standing there by one of the pumps; also saw Mr. Harriman standing at the pump; at that time there was no indication that the child was going to run into the road; when he got close to the station the child darted out into the road and he immediately turned his car to the right toward the station, and when the child left the center of the road he turned to the right and then to the left; there was no possible way to turn to the right to avoid striking the child; he put on the brakes and when he struck the child was going 5 or 10 miles an hour; he knocked the child about 5 feet; the accident was unavoidable; he was not going 60 miles an hour; the child was taken to the hospital and was not conscious at any time; it breathed some, but gave no indication of consciousness; stayed at the hospital...