Splawn v. Wright

• Decision Date: 08 May 1939
• Docket Number: 4-5477
• Citation: 128 S.W.2d 248,198 Ark. 197
• Parties: SPLAWN, ADMINISTRATRIX v. WRIGHT
• Court: Arkansas Supreme Court

128 S.W.2d 248

198 Ark. 197

SPLAWN, ADMINISTRATRIX v. WRIGHT

4-5477

Supreme Court of Arkansas

May 8, 1939

Appeal from Chicot Circuit Court; D. L. Purkins, Judge; reversed.

Judgment reversed and dismissed.

Buzbee Harrison, Buzbee & Wright, for appellant.

Bob Bailey and Ohmer Burnside, for appellee.

HOLT J. MEHAFFY, J., dissents.

OPINION

HOLT, J.

This appeal comes from a judgment of $ 10,000.00 in favor of appellee against appellant for injuries received by appellee on December 4, 1937, while a guest in the automobile of appellant's intestate, Jack Splawn.

The principal allegations of negligence relied upon by appellee in her complaint are that Jack Splawn, driver of the automobile in question, was guilty of willful misconduct, or willful and wanton operation of his automobile, in driving "at a very excessive, fast and dangerous rate of speed over a road made slick and rough by recent rains"; in not "stopping or slowing down said automobile when so requested by the plaintiff"; and "by attempting to turn on the heater in said automobile while traveling at a high, excessive and dangerous rate of speed."

Appellant answered, denying every material allegation in the complaint and further alleged as a defense that appellee was at the time of her injuries a guest in the automobile of her intestate, Jack Splawn, and specifically pleaded §§ 1302-4 of Pope's Digest of the Statutes of Arkansas in bar of appellee's alleged cause of action.

The evidence as reflected by this record, stated in its most favorable light to appellee, is substantially as follows: Appellee was twenty-eight years of age and a school teacher at Dyess Colony at the time of the accident, earning $ 75.00 per month. She lived in a teacherage at the Colony with five other teachers. She was acquainted with Jack Splawn, who was a bookkeeper at the Colony.

About nine o'clock on the night in question, appellee, along with two other young lady teachers and two young men, including Mr. Splawn, went driving in an automobile driven by Splawn. It was turning cold, raining and foggy. She was in the middle of the back seat between one of the other young ladies and a Mr. Sisk. Mr. Splawn was driving the car, a tudor Ford V-8, and one of the other ladies was on the front seat with him. They had ridden only a short distance when Mr. Sisk suggested changing places with appellee, and quoting appellee, ". . . as we changed the road was slick and we had come around a curve while changing and the car threw me to one side. I said, 'Jack, be careful, you're driving too fast.' He didn't pay any attention. In a few seconds he reached down to turn on the heater or to adjust it and lost control of the car." Appellee spoke loud enough to Jack Splawn for him to hear her. After rounding the curve they then proceeded to travel at a speed of from forty to forty-five miles per hour on the straight gravel road for a distance of about a quarter of a mile, when one of the ladies exclaimed, "Look out"; that immediately the car plunged into a bridge railing, causing injuries to appellee. Her leg was broken and she was otherwise hurt, and Mr. Splawn, the driver, was killed.

The point of the accident was about one mile from the teacherage. It was always muddy when it was raining and appellee asked Splawn to be careful because the car had skidded and that is what threw her to one side. They had just turned the curve at that time. The curve was about a quarter of a mile from the bridge where the accident happened. Mr. Splawn was not drunk. The gravel road was about twenty-six feet wide and the bridge on which the collision occurred is approximately eighteen feet wide. Two cars can pass on it with room to spare.

J. E. Terry, witness for appellee, testified: "A. At the time I went up there, or at the time I left the house I will say, it was misting and drizzling and the visibility was bad. Most any speed would have been hazardous. You couldn't see far. . . . The car had not been moved from the point of the accident at the time I got to the scene. . . . Q. Did you notice the path or trajectory of the car as it left the road preceding the hitting of the bridge? A. Yes, sir. Q. The marks were plainly observable in the road when you got there? A. Yes, sir, they were. Q. Was there a gradual veering off from the center of the road to the point where the bridge was struck? A. Yes, sir. Q. About how far back would you say those marks extended? A. From where they just began veering off, somewhere in the neighborhood of a hundred yards, I guess. Q. That is your best estimate about it? A. Yes, sir. Q. That was just a gradual slow veering to the point of the impact? A. Yes, sir. Q. You don't know how slow the veering was to the point of the impact? A. No, sir. Q. Just a gradual straight line? A. Yes, sir."

On this state of the record appellant urges here but one error: The failure of the trial court to direct a verdict in her favor. Appellant earnestly insists that the sole proximate cause of the injuries to appellee was the simple negligence of Jack Splawn in reaching to adjust the heater on the extreme right side of the car in question.

It is undisputed in this case that at the time of the collision of the car with the bridge railing appellee was a guest in the automobile of appellant's intestate.

Sections 1302-4, Pope's Digest of Arkansas, commonly called the Guest Statute, which apply here, provide: "That no person transported as a guest in any automotive vehicle upon the public highways of this state shall have a cause of action against the owner or operator of such vehicle for damages on account of any injury, death or loss occasioned by the operation of such automotive vehicle unless such vehicle was willfully and wantonly operated in disregard of the rights of the others.

"The term guest as used in this act shall mean self-invited guest or guest at sufferance." Under the provisions of this statute before appellee can recover she must show by substantial testimony that appellant's intestate, Jack Splawn, at the time of the collision willfully and wantonly operated his automobile in disregard of appellee's rights. Whether an automobile is being operated in such a manner as to amount to wanton and willful conduct in disregard of the rights of others must be determined by the facts and circumstances in each individual case.

In the instant case, giving to appellee's testimony its strongest probative force in her favor and indulging every inference reasonably deducible therefrom, we think the most that can be said of it is that, Splawn, the driver of the car, was guilty of nothing more than a simple act of negligence by reaching to the right to adjust the heater in the front of the car.

It is...