Ward v. Fort Smith Light & Traction Co.

• Decision Date: 01 May 1916
• Docket Number: 370
• Parties: WARD v. FORT SMITH LIGHT & TRACTION COMPANY
• Court: Arkansas Supreme Court

185 S.W. 1085

123 Ark. 548

WARD v. FORT SMITH LIGHT & TRACTION COMPANY

No. 370

Supreme Court of Arkansas

May 1, 1916

Appeal from Sebastian Circuit Court, Fort Smith District; Paul Little, Judge; affirmed.

STATEMENT BY THE COURT.

Appellant instituted this action against appellee to recover damages for personal injuries which he alleges were sustained by his decedent by reason of the negligence of appellee. The material facts proved by appellant are as follows:

On the 24th day of August, 1915, Jim Crowe, a driver of a public taxicab received a call to go to 219 First Street, for Joe Ward, Jr. and Carroll Milton. He received them in his automobile and started home with them. It was raining very hard at the time and the wind shield was down. He started east on North C Street and drove at the rate of twelve or fifteen miles an hour. When he came to the alley on C Street between Fourth and Fifth Streets, he brought his car practically to a stop because Ward told him that he had lost his keys and would like to return for them. Ward announced that he had found his keys and the machine then proceeded up C Street towards Fifth Street. Crowe looked as far as he could see in each direction and did not see any street car approaching. There was a street car track on Fifth Street and the automobile started across the street car track and the car was within fifteen feet before the driver of the automobile saw it. His machine could have been stopped in twenty feet at the rate it was traveling. The street car was being propelled at a very high rate of speed. As soon as the driver of the automobile saw it he tried to turn his machine up Fifth Street in order to avoid the collision, but was unable to do so. The street car struck the automobile with great violence and the automobile was carried about 150 feet after it was struck by the street car. Crowe testified that neither he nor Ward nor Milton had been drinking any that evening; that neither Ward nor Milton exercised any control over the automobile; that they simply gave him directions to take them home for which they paid him; that C Street ran at right angles with Fifth Street; that there was an arc street light at the intersection of C and Fifth Streets and that this tended to obliterate the light on the street car; that no bell or gong was sounded by the motorman on the street car as it approached; that the street car was traveling over twice as fast as the automobile and was right on them before they saw it. Ward died from the effects of the injuries received by him in the collision. The physicians who attended him testified that he suffered great pain before he died and that he was conscious of the pain.

Carroll Milton, in all essential respects corroborated the testimony of the driver of the automobile. Other witnesses who resided in the neighborhood of the place where the collision occurred or who happened to be on the streets there, testified that the street car was coming at a very high rate of speed when it struck the automobile. Some of them stated that it was going at the rate of over forty miles an hour. One witness stated that he was at the intersection of D and Fifth Streets about a block away from where the accident occurred and that he saw the street car for some distance before it passed him that it was going at an exceedingly high rate of speed and that it did not check its speed before the collision with the automobile. It was shown on the part of appellant that the street car was going down grade for several blocks before it reached the scene of the accident and that it did not stop or check its speed as it approached the street crossing.

Leonard Baker, the motorman on the street car the night of the accident, a witness for appellee, testified: I have had four years experience as motorman. The car which ran into the automobile on the night in question was car number 22. It was a forty passenger, double brake car, equipped with air brakes and was known as the owl car. It leaves the car barn at 12:15 A. M. and runs to Electric Park, then returns to the car barn, picks up the car men who have come in from runs and takes them into Fort Smith, going south on Fifth Street to Garrison Avenue, around on Third and Second Streets, loops back to Garrison Avenue to Eleventh Street and then to the car barn. On the night of the accident I had three men on the car in addition to the conductor and myself. It was raining hard and the track was slick. As I crossed D Street and approached C Street, I sounded the gong and shut off the power. I saw the automobile approaching. In my judgment, I was running only eighteen miles an hour. I was standing in the proper place on the car with my face close to the window shield looking ahead. When I got to the intersection of C and Fifth streets, I saw an automobile coming from the west up C street. It was about fifteen feet from the street car track when I first saw it. I put on the air brakes and the emergency brake. The car collided with the automobile and the accident happened at exactly 12:35 o'clock on the morning of August 24, 1915. After I applied the emergency brake the wheels became locked at the distance of about fifteen feet and the car traveled after that 110 feet before it stopped.

Other witnesses for the defendant corroborated the testimony of the motorman. Other witnesses for the defendant testified that they had made a test of the speed of car number 22 and found that it could not run at a greater rate of speed that twenty-six or twenty-seven miles an hour. The test also showed that the motorman stopped the car on the night of the accident as soon as it could have been stopped.

Other facts will be referred to in the opinion. From a verdict and judgment in favor of appellee appellant prosecutes this appeal.

Judgment affirmed.

Read & McDonough and Winchester & Martin, for appellant.

1. The court erred in excluding the evidence of witnesses tending to show the high rate of speed of the street car. 92 A. 185; 42 App. D. C. 532; 93 A. 666; 108 N.W. 271; 116 Id 933; 235 Ill. 275; 47 S.E. 850; 115 Ky. 883; 118 Wis. 210.

2. It was error also to exclude the evidence of E. F. Creekmore. 99 Ark. 597; 66 S.E. 817; 92 Ark. 569; 74 A. 519; 124 S.W. 140; 74 A. 401; 235 U.S. 429; 44 Ark. 468; 69 N.E. 486; 112 Ark 589; 128 Mich. 149; 171 Id. 180; 215 Mo. 394, etc.

3. The evidence of Jim Crowe and Carrol Milton as to where deceased had been was inadmissible. Elliott on Ev., §§ 156-7, 975 to 978.

4. The traffic ordinances were admissible in evidence to show negligence. 27 A. & E. Enc. Law, 62 to 66; 121 S.W. 690; 67 So. 278; 108 P. 211; 113 S.W. 1126; 128 S.W. 5; 69 N.E. 1123 and many others. 27 R. I. 499; 71 S.W. 565; 172 Id 843; 174 S.W. 1170; 68 So. 509; 218 Mass. 52; 168 S.W. 247; 167 Id. 471.

5. Review the instructions contending there was error and cite 95 Ark. 108; 196 Ill. 410; 87 Minn. 280; 150 N.W. 31; 92 A. 185; 92 Id. 1015; 93 Id. 666; 42 App. D. C. 532; 92 Ark. 350; 86 Id. 289; 91 Id. 260; 88 Id. 181, 292; 90 Id. 326. A violation of an ordinance creates liability. 112 Ala. 425; 123 Cal. 275; 43 Md. 534; 40 Mo. 506; 40 Neb. 29; 27 A. & E. Enc. L. 61-2 note 5, 478. It is error to give conflicting instructions. 79 Ark. 12; 82 Id. 424; 83 Id. 202; 87 Id. 76; 94 Id. 282; 112 Id. 305. See also 116 Ark. 125; 117 Ark. 337. Mere repetitions of instructions is erroneous. No. 17 is a mere comment on the evidence. It is the duty of a motorman to use due care at all times. 167 S.W. 924; 116 Ark. 25; 117 Ark. 337; 105 N.E. 609.

The defendant's instructions conflict with those given for plaintiff. The negligence of a driver could not be imputed to deceased. 72 Ark. 572; 137 P. 31; 145 N.W. 923; 141 P. 868; 91 A. 405; 150 N.W. 164; 93 A. 666 and many others.

Hill, Fitzhugh & Brizzolara and Oglesby, Cravens & Oglesby, for appellee.

1. It was not error to exclude the testimony of Sailor and others as to the speed of the car. 106 Ark., King v. State; 88 Ark. 562; 97 Id. 564. Testimony as to the speed of the car at other places was properly excluded. Patterson Ry. Acc. Law, § 364; 58 Ark. 468; 81 Id. 596; 58 Id. 468.

2. It was not error to exclude Creekmore's evidence as to a race he had with a car a month before the accident. 1 Elliott on Ev., § 157; 1 Greenl. on Ev., § 14a.

3. There was no error in admitting the testimony of Crowe and Carroll. At all events it was harmless. 112 Ark. 401; 103 Id. 315, 318; 84 Id. 16; 85 Id. 123; 99 Id. 302; 103 Id. 318.

4. Every ordinance offered was admitted in evidence. The remark of the court was not a ruling, and the remark was not objected to. 116 Ark. 125.

5. There is no error in the instructions. Taken together they correctly state the law. 89 Ark. 300; 84 Id. 74; 92 A. 185, 1015; 93 Id. 666; 89 Ark. 574; 96 Id. 531; 101 Id. 433; 108 Id. 99. The record presents no prejudicial errors.

OPINION

HART, J., (after stating the facts).

I. It is insisted by counsel for appellant that the court erred in excluding the testimony of certain witnesses tending to show the high rate of speed of the street car at places along the track on Fifth street before the car reached C street. The witnesses referred to are W. H. Sailor, Louis Adams and Mrs Ed. Haglin. The record shows that on the night of the accident, W. H. Sailor resided at 929 N. Fourth street. His residence was therefore about eight blocks from the scene of the accident and one block from the street car line. He testified that he observed the car as it passed prior to the time of the accident but he stated that he did not know anything about the speed of a street car or a railway train. He said of course he could tell whether a car was running fast or slow. He was then asked if the car in question was traveling at a high or low rate of...