Texas Motor Co. v. Buffington

• Decision Date: 20 May 1918
• Docket Number: (No. 369.)
• Citation: 203 S.W. 1013
• Parties: TEXAS MOTOR CO. v. BUFFINGTON.
• Court: Arkansas Supreme Court

Page 1013

203 S.W. 1013

TEXAS MOTOR CO. v. BUFFINGTON.

(No. 369.)

Supreme Court of Arkansas.

May 20, 1918.

Appeal from Circuit Court, Miller County; Geo. R. Haynie, Judge.

Action by W. F. Buffington against the Texas Motor Company. Judgment for plaintiff, and defendant appeals. Reversed, and remanded for new trial.

Webber & Webber, of Texarkana, for appellant. G. G. Pope and Will Steel, both of Texarkana, for appellee.

McCULLOCH, C. J.

The plaintiff, W. F. Buffington, instituted this action in the circuit court of Miller county to recover damages on account of injuries alleged to have been sustained through the negligence of defendant, the Texas Motor Company. The charge of negligence is that one of the officers of defendant backed a car out of a garage into a public street in the city of Texarkana and knocked the plaintiff down, thereby inflicting serious injuries to the person of the latter. It is charged that the automobile was backed out into the street at a high rate of speed without any warning signal being sounded and without any effort on the part of the driver to ascertain the presence of persons in the street. The defendant denied the alleged act of negligence, and asserted that plaintiff's injuries, if he received any at all, were caused by his own act of negligence in attempting to cross the street in the middle of the block and in failing to exercise ordinary care to prevent the car from striking him. The trial of the case before a jury resulted in a verdict in favor of the plaintiff, awarding a very substantial amount of damages.

The collision occurred on State street in Texarkana, Tex., at a point in the middle of a certain block where an automobile garage fronts upon the street. The car driven by Anthony, one of the officers of defendant corporation, was backing out of the entrance of the garage when the rear end of the car or the rear fender struck plaintiff and knocked him down as he was crossing the street. There is a conflict in the testimony as to whether the machine was backed out of the garage or merely backed out of the entrance. The plaintiff testified that when he started across the street he looked in each direction, but could not see any car, and his statements, if believed, would warrant the conclusion that the car was inside of the garage at that time. On the other hand the testimony adduced by the defendant was to the effect that the car did not enter the garage at all, but was turned into the entrance for the purpose of obtaining a supply of gasoline and was backed a few feet in order that the nozzle of the gasoline hose could be connected with the tank of the car. Plaintiff's own testimony was, in substance, that he turned diagonally across the street at a point near the entrance of the garage and looked up and down the street for automobiles and other vehicles, and that when he got near the middle of the street the car driven by defendant's agent struck him and knocked him down. He testified that he did not see the car until he was struck by it. The garage where the injury occurred was owned and operated by a Mr. Anderson, and was known as Anderson's Garage. There appears to have been no connection between the defendant company and the Anderson Garage, and Anthony, the driver of the machine in question, merely stopped at the garage to obtain a supply of gasoline. The gasoline filling station was located near the curb on the left side of the entrance, and could be approached either by stopping the car on the side of the street or turning into the entrance.

According to the testimony of several witnesses introduced by the defendant, the machine was not run into the garage at all, but was turned into the entrance for the purpose of stopping at the gasoline station. According to that testimony, the driver in turning into the entrance ran the car a little too far to admit of connecting the gasoline hose with the tank, the front wheels of the car being stopped about the edge of the sidewalk in front of the entrance. Anderson was standing at the tank at that time for the purpose of delivering the gasoline, and another man who had come up in the car with Anthony was standing on the other side of the entrance. The car was backed only 4 or 5 feet, according to the testimony of defendant's witnesses, and the rear fender struck plaintiff and knocked or pushed him down. Plaintiff testified that he was violently knocked down, but defendant's witnesses testified that he was pushed down, or merely "sat down," using the exact language of the witnesses. There is a sharp conflict in the testimony as to the distance the automobile was backed, as well as to the speed. According to plaintiff's testimony, the machine was backed about 19 feet out into the street, whereas defendant's testimony shows that it was only backed about 4 or 5 feet. Plaintiff testified that the horn was not sounded, and there was no testimony to contradict him on that point. Anthony testified that when he backed his car he looked around on the left side of the car and did not observe any one in sight. He stated that he did not look back through the rear windows of the car, nor did he look backward on the other side of the car. Anderson testified that he was looking when the collision occurred, and that plaintiff was walking toward the car as it backed out, and that he called out in alarm, but that plaintiff continued his course.

It is clear that the testimony introduced in the case presented issues to be submitted to the jury as to the negligence of defendant's agent in backing the car into the street without warning, or without exercising proper care to discover the presence of plaintiff, and at an excessive rate of speed, and also as...