Shroeder v. Johnson

• Decision Date: 08 January 1962
• Docket Number: No. 5-2541,5-2541
• Citation: 352 S.W.2d 570,234 Ark. 443
• Parties: George SHROEDER, Appellant, v. Billy Wayne JOHNSON, Mary Imogene Johnson, T. J. Johnson, and Arlene Johnson, Appellees.
• Court: Arkansas Supreme Court

Page 570

352 S.W.2d 570

234 Ark. 443

George SHROEDER, Appellant, v. Billy Wayne JOHNSON, Mary Imogene Johnson, T. J. Johnson and Arlene Johnson, Appellees.

No. 5-2541.

Supreme Court of Arkansas.

Jan. 8, 1962.

G. Byron Dobbs and J. Sam Wood, Fort Smith, for appellant.

Sexton & Morgan and Charles R. Garner, Fort Smith, for appellees.

WARD, Justice.

This is a highway intersection accident case. Appellant, George Shroeder, was driving east on a secondary road where it intersected Highway number 45 running north and south when his car collided with an automobile going north on Highway 45 being driven by one of the appellees, Arlene Johnson. The Johnson car was owned by her husband, T. J. Johnson, one of the appellees; appellees Billy Wayne Johnson and Mary Imogene Johnson were passengers in the car. Appellees filed suit against appellant for damages, claiming that appellant was negligent in failing to yield the right of way, in failing to keep his automobile under control and in failing to keep a proper lookout. There was a jury trial resulting in judgments in favor of appellees in the following amounts: Arlene Johnson, $2,853.23; T. J. Johnson, $790.83; Billy Wayne Johnson, $300.00; and Mary Imogene Johnson, $2,230.40.

Appellant has appealed to this Court seeking a reversal based on two assignments of error, viz.: One, the trial court erred in its refusal to direct a verdict in favor of appellant at the close of all the testimony; Two, the trial court erred in refusing to grant a mistrial based on the introduction by appellees of improper testimony. These points will be discussed in the order named after first summarizing the factual background.

Background Facts. The accident happened on December 17, 1960 about 4 miles south of the City of Fort Smith. Highway 45 is a principal traffic artery with a speed limit of 45 miles per hour at the intersection involved. On this occasion appellees, who frequently travelled Highway 45, were travelling north as they approached the intersection. Appellant, the owner and operator of the Downtown Hotel at Fort Smith, was driving his car east on what appears to be a secondary road. As he approached Highway 45 there were three objects on his right side: One was a stop sign, indicating that he should stop before he entered Highway 45; this sign was approximately 20 feet west of the west edge of the pavement on Highway 45. The second object was a telephone pole apparently 2 or 3 feet west of the stop sign. The third object was a rather large advertising sign apparently approximately 2 feet west of the telephone pole. This sign was apparently about 4 or 5 feet in length and 1 1/2 feet in width, hanging parallel with the secondary road. (The information relative to these objects, their locations and sizes is taken from photographs introduced into evidence by appellees and from oral testimony in the case.)

It is the contention of appellees that they were travelling approximately 45 miles per hour (the legal speed limit) as they approached the intersection, and did not see or realize that appellant's car was attempting to cross the road in time to stop or prevent a collision. It is appellant's contention that he stopped before entering upon Highway 45 and this is not disputed. He further contends that before he started up he looked to his right and saw no car approaching and then he approached Highway 45 at a speed of 5 miles per hour, and still seeing no car to his right, he entered upon the highway; that after his car had crossed the center line of Highway 45, the front of appellee's car struck the right front door of his car.

One. The trial court was correct in refusing to instruct a verdict in favor of appellant because, in our opinion, the testimony presented a question of fact for the jury to resolve. The jury found negligence on the part of appellant and we think the record contains substantial evidence to support its finding.

Appellant's testimony was substantially as follows: I pulled up within 4 feet of the intersection and stopped and waited until two or three cars had passed, then I looked and saw no other cars in sight on Highway 45; then I started up at about 5 miles per hour to cross Highway 45, going not less than 10 miles per hour; when the middle of my car was across the center line of Highway 45, I saw a car coming from the south about 150 feet away; then the collision occurred. Gertrude Beers, aged 29, who was riding with appellant testified that he stopped about two minutes while two cars passed going south; that he then pulled out into the intersection; that she didn't consciously look to see, but she believed Highway 45 was clear at the time. James D. Mickle, a civil engineer, was the only other witness for appellant. He made a plat or diagram of the intersection. He stated that Highway 45 pavement was 23 feet wide and the stop sign was about 20 feet west of the west edge of the pavement. He also stated that a person standing at the intersection could see a car coming from the south a distance of 465 feet away.

Arlene Johnson, the driver of appellee's car testified that she was familiar with Highway 45 at the scene of the accident since she drove over it frequently on her way to work in Fort Smith; on this occasion she drove 45 or 50 miles per hour until she came to the caution sign of 45 miles per hour when she reduced her speed accordingly; when she approached the intersection she first saw appellant's car between the advertising sign and the stop sign; at this time appellant's car was going slowly--about 5 miles per hour--as it approached Highway 45, and she let up on the gas; when she was about 70 feet from the intersection and saw appellant nearing the edge of the highway without stopping, she applied her brakes and honked her horn, and then the cars collided; the day was clear and sunny. Imogene Johnson, who was in the car with Arlene, testified that when they came over the rise (about 465 feet south of the intersection) she saw appellant's car near the stop sign approaching the intersection, and when they were within about 85 feet of the intersection she noticed Arlene apply the brakes and blow the horn, and appellant proceeded onto the highway.

From the above it appears there was a conflict in the evidence on a vital point. According to appellant, he stopped two minutes within 4 feet of the edge of Highway 45, he looked and saw no car in sight, and then he drove onto the highway. Arlene and Imogene Johnson said they saw appellant's car near the stop sign about 20 feet west of the edge of Highway 45, the car was moving and didn't stop before entering the highway. The jury had the right to believe appellees' testimony and disbelieve the testimony of appellant, which they evidently did in this case. It appears to us there are certain facts and circumstances tending to support the jury's judgment. Gertrude Beers who was in the car with appellant did not corroborate his testimony on the vital point, i. e., that he stopped within 4 feet of the highway and that he looked for traffic. Also, if the jury believed Arlene and Imogene were able to see appellant's car even when it was 20 feet from the intersection it had a right to believe appellant could have seen appellee's car if he did actually look south on the highway when he was within 4 feet of the intersection. In other words, the jury had a right to conclude appellant failed to exercise due care, either to stop close to the highway or to look for oncoming traffic, or both--a duty imposed on him under the Court's Instruction No. 4 given without objection. In this connection, we think the following quotation from Ness v. Males, 201 Md. 235, 93 A.2d 541, 543, is applicable:

'We have held that the statutory obligation to yield the right of way at a stop intersection, imposed upon...