Thomas v. Newman, 76-284

• Decision Date: 11 July 1977
• Docket Number: No. 2,No. 76-284,76-284,2
• Citation: 553 S.W.2d 459,262 Ark. 42
• Parties: Dean THOMAS, Sp. Adm., Appellant, v. Thomas Clayton NEWMAN, Appellee
• Court: Arkansas Supreme Court

Page 459

553 S.W.2d 459

262 Ark. 42

Dean THOMAS, Sp. Adm., Appellant, v. Thomas Clayton NEWMAN, Appellee.

No. 76-284.

Supreme Court of Arkansas, Division No. 2.

July 11, 1977.

James C. Cole, Malvern, for appellant.

Barber, McCaskill, Amsler & Jones, Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant Dean Thomas, father of Bradley Thomas, deceased, is Special Administrator of his son's estate and, as such, he was the plaintiff in a wrongful death action against appellee Thomas Newman. This appeal is from a judgment on a directed verdict in favor of Newman in that suit. The sole point for reversal is the propriety of that verdict. We find error in that action and reverse.

In reviewing the trial court's action, we must view the evidence in the light most favorable to appellant, drawing all reasonable inferences favorably to him. Wheeless v. Eudora Bank, 256 Ark. 644, 509 S.W.2d 532; Little Rock Land Company v. Raper, 245 Ark. 641, 433 S.W.2d 836. In stating the evidence, as we see it, we will do that.

Bradley, or Brad, as he was known, was 13 years of age on April 5, 1975, when he died as a result of being struck by an automobile driven by Newman on State Highway 7 south of Bismarck. Brad had accompanied his father and uncle, J. L. Thomas on a trip to Reuben Hardin's farm to cut firewood. His younger sister and a cousin also went along. The journey was made in a pickup truck owned and driven by J. L. Thomas. Brad rode in the bed of the truck along with his little sister. His brother Kelly and cousin Dennis rode in the cab with the two adults. When the party arrived at the Hardin farm along Highway 7, at about 12:30 p. m., J. L. Thomas turned the truck off the highway and stopped at a gate, which was an entrance to the farm. Brad's father got out of the truck and went to open the gate. Brad told his cousin Bill that he knew where they could find some bottles. In spite of being told by his uncle not to leave the truck, Brad was observed on the opposite side of the highway near a highway sign on its shoulder by his father, who looked in that direction as he was about to close the gate after the truck had been driven through it. The father called to the lad to return to the truck, and then turned his attention to the gate. The father had not seen any automobiles on the highway in either direction when he called to his son, but almost immediately he heard brakes squealing and a "bump," and turned and saw Brad "still at the car." He said the car threw Brad "in the air" down the pavement. He ran to the boy, picked him up from the southbound traffic lane (in which Newman had been traveling), and, with the help of J. L. Thomas, put him in the back of the truck and took him to the hospital. Brad died within a few hours.

Brad was 5'6 or 7 tall and weighed 110 to 120 pounds. When seen by his father, he was on a 71/2-foot shoulder of the highway. Newman, in approaching the place where Brad was, had clear visibility of the highway, its shoulder and the sign warning of a curve, for quite a distance on a straight stretch of an otherwise crooked highway. He admitted that he had seen the boy standing on the shoulder of the highway as he approached the point where his car had struck the lad. He could have seen all but the lower three feet of the boy's body from a distance as great as 578 feet, although his full body may not have been visible for more than 330 feet. It was a clear day and the sun was shining.

J. L. Thomas did not hear the sound of a horn at any time. Nor did he hear the sounds characteristic of the braking of an automobile to check its speed prior to hearing the "squealing," which probably was caused by skidding of the vehicle's tires on the pavement. The right-hand skid marks were less than three feet from the edge of the 22-foot wide pavement. The right rear tire skidded 89 feet, only 52 of which were in a straight line, and about 25 feet north of the sign. The left rear tire skidded only 83 feet, and it appears that this wheel started skidding earlier than the right rear wheel. Both front tires skidded 60 feet, on a line curving toward the driver's left at which point the front of the vehicle appears to have left the pavement on the left-hand side. The rear of the vehicle may not have left the highway at all. The front wheel skid marks probably did not commence until the front of the vehicle was opposite the highway sign. A fair inference could be drawn that no diversionary action was taken by the driver of the Newman vehicle until its front had passed beyond the highway sign. Blood spots about three feet apart were found in the southbound lane between 31/3 and 4 feet from the center line of the pavement. Marks on the vehicle indicate that the lad was struck by the part of the vehicle near its right front headlight.

The circuit judge granted the motion for a directed verdict on the theory that the evidence on behalf of the plaintiff could only leave the jury to speculation as to the events that led up to the occurrence. Viewing the evidence as we do and considering that no evidence had been offered to overcome any permissible inferences, favorable to appellant, that might be drawn from the testimony, we disagree.

In considering the propriety of this action at the conclusion of the evidence, we give the testimony its highest probative value. Ellsworth Brothers Truck Lines v. Mayes, 246 Ark. 441, 438 S.W.2d 724. There is no question about the existence of evidence which would justify a jury, at least in the absence of other evidence, in finding that Newman was guilty of negligence. The allegations of negligence in the complaint were failure to keep a proper lookout, to exercise ordinary care in anticipating the acts of a 13-year-old child-pedestrian along the highway, to keep the vehicle under such control as to be able to check its speed or stop it when it became necessary to avoid colliding with the pedestrian and failure to exercise ordinary care after discovering the child-pedestrian in a position of danger. We think there was evidence from which the jury might well have found that Newman failed to keep a proper lookout, to exercise proper control of his vehicle, and to exercise ordinary care to avoid injury to Brad Thomas. There was also evidence from which a jury might infer that the Newman vehicle was being driven at an excessive speed.

It is well recognized that pedestrians and motorists have equal rights to use the public highways and each must act with regard to the presence of the other. Bennett v. Staten, 229 Ark. 47, 313 S.W.2d 232; Williamson v. Garrigus, 228 Ark. 705, 310 S.W.2d 8; Haralson v. Jones Truck Lines, 223 Ark. 813, 270 S.W.2d 892, 48 A.L.R.2d 248; Brotherton v. Walden, 204 Ark. 92, 161 S.W.2d 391. A motorist must keep a constant lookout to avoid injury to pedestrians, and should anticipate their presence. Williamson v. Garrigus, supra; Lion Oil Refining Co. v. Smith, 199 Ark. 397, 133 S.W.2d 895. The care exercised must be commensurate with the danger reasonably to be anticipated. Brotherton v. Walden, supra; Lion Oil Refining Co. v. Smith, supra. A person operating an automobile and seeing children ahead must exercise such care as a man of ordinary prudence would exercise under the circumstances, i. e., care commensurate with the danger to be anticipated. Self v. Kirkpatrick, 194 Ark. 1014, 110 S.W.2d 13.

In viewing the evidence in the light we must and in considering the law applicable, we will consider Brad as a child. We have not established definitive rules for determining whether an injured party is a child in a negligence case. Appellee contends that a 13-year-old youth is not a child for the purpose of measuring appellee's action against reasonable care standards. But we have held that AMI, Civil, 605 should have been given when a minor between 14 and 15 years of age was involved. Holcomb v. Gilbraith, 257 Ark. 32, 513 S.W.2d 796.

The failure of the driver to sound his horn, or to take earlier diversionary action, or to sooner apply his brakes are significant on the question of speed, control and lookout. See Breashears v. Arnett, 144 Ark. 196, 222 S.W. 28. Ark.Stat.Ann. §§ 75-725(a) (Supp.1975) and 75-628(a) and (d) (Repl.1957) ¹ are pertinent on these questions and on the question whether appellant, having the opportunity to see the 13-year-old boy along the highway, used reasonable care commensurate with a danger reasonably to be anticipated. See Oliphant v. Hamm, 167 Ark. 167, 267 S.W. 563. A 13-year-old boy is not an adult and it has been said that it is universally recognized that he has not reached a state of physical and mental maturity sufficient to warrant the belief that he is no longer apt to be daring, thoughtless and reckless. Thompson v. Anderman, 59 N.M. 400, 285 P.2d 507 (1955); Paschka v. Carsten, 231 Iowa 1185, 3 N.W.2d 542 (1942). See also, Fightmaster v. Mode, 31 Ohio App. 273, 167 N.E. 407 (1928).

Brad obviously came upon the roadway before he was struck. It appears that he was not at any time very far from that portion of the highway ordinarily used for vehicular traffic. Newman saw him on the shoulder. A pedestrian, insofar as § 75-628(d) is concerned, is any person afoot. Ark.Stat.Ann. § 75-409(b) (Repl.1957). The duty of a motorist to sound his horn when approaching one on foot along a highway is not wholly dependent upon the statute.

The failure of a driver to give a pedestrian on or near a highway a warning signal is a circumstance to be considered in deciding whether the driver operated his vehicle with reasonable care in the circumstances presented him. Graff v. Louis Stern Sons, Inc., 103 N.J.L. 13, 135 A. 335 (1926); Nunnelley's Adm'r v. Muth, 195 Ky. 352, 242 S.W. 622, 27 A.L.R. 910 (1922). Even in the absence of any statute, a duty to sound a signal of his approach rests on the operator of an automobile approaching a pedestrian who is in danger of being struck unless warned, particularly if it appears that the...