Walker v. Earnheart

• Decision Date: 30 October 1933
• Docket Number: 4-3084
• Parties: WALKER v. EARNHEART
• Court: Arkansas Supreme Court

63 S.W.2d 974

187 Ark. 1110

WALKER v. EARNHEART

4-3084

Supreme Court of Arkansas

October 30, 1933

Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann Judge; affirmed.

Judgment affirmed.

E. W Moorhead, for appellant.

Sam T Poe and Tom Poe, for appellee.

OPINION

MCHANEY, J.

Appellee sued appellant for personal injuries sustained by him on the night of December 3, 1931, when he was struck by an automobile driven by appellant. He recovered a judgment against appellant for $ 10,000. Only two assignments of error are urged for a reversal of the judgment: (1) That the appellee was guilty of contributory negligence as a matter of law and that the court should so have instructed the jury at his request, and (2) that the verdict is excessive.

The question of the contributory negligence of appellee was submitted to the jury under instructions requested by both parties, and, by its verdict, the jury has found that appellee was not guilty of contributory negligence. The facts are that, on the night of December 3, 1931, about 7:30 P. M on a dark and rainy night, appellee was walking north on Main Street in North Little Rock and, at the time of the accident, was crossing 16th on the east side of Main Street. Appellant was driving west on 16th Street at the rate of 10 or 15 miles an hour and drove his car upon appellee, striking him with his left fender and left headlight, without seeing him until he felt the impact of the car against him. Appellee was struck with such force as to knock him eight or ten feet distant. Appellee saw the car approaching from the east, but assumed the car would stop, because at that corner on the east side of Main Street and in the center of 16th Street there is a stop button or sign which required all vehicles to come to a stop before entering Main, but appellant freely admitted that he failed to obey this stop button or sign and failed to see appellee until after he had struck him. Appellee testified that the car had only one light on it and that he thought that it was a motorcycle, but that when he discovered that it was a car, it was right on him, and he tried to jump back, but was struck. Appellant was familiar with the street crossing, and knew that there was a stop sign or button there. Under this state of facts, we think the court correctly refused to instruct a verdict for appellant on the ground that appellee was guilty of contributory negligence as a matter of law. The general rule is that a pedestrian has the same right to the use of a public street as the driver of a motor vehicle, and that each is obliged to act with due regard to the movements of the other, and neither is required to anticipate the negligence of the other. The rule is thus stated in Murphy v. Clayton, 179 Ark. 225, 15 S.W.2d 391: "Drivers of automobiles and pedestrians both have a right to the street, but the former must anticipate the presence of the latter, and exercise reasonable care to avoid injuring them. Care must be exercised commensurate with the danger reasonably to be anticipated. What is...