Whistle-Vess Bottling Co. v. Owens, WHISTLE-VESS
| Decision Date | 16 November 1970 |
| Docket Number | No. 5--5375,WHISTLE-VESS,5--5375 |
| Citation | 459 S.W.2d 562,249 Ark. 424 |
| Parties | BOTTLING COMPANY, Appellant, v. T. A. OWENS, Appellee. |
| Court | Arkansas Supreme Court |
Wright, Lindsey & Jennings, Little Rock, for appellant.
Acchione & King, Little Rock, for appellee.
This is an appeal from a judgment rendered against Whistle-Vess Bottling Company, appellant herein, and in favor of T. A. Owens, appellee, who was injured in an accident in Little Rock on December 16, 1965. Owens, a member of the Little Rock Police Department, was operating a police motorcycle on West Third Street on the date in question, and received a call to assist another officer at Second and Summit Streets. Just prior to the accident, both appellee and appellant's soft drink truck were traveling west on Third Street, both vehicles being in the inside lane nearest the yellow center line. The officer testified that he noticed the truck as it pulled away from the signal light at Third and Cross, at that time quite some distance ahead of him. There was also a blue pick-up truck traveling just abreast of the soft drink truck in the outside lane. Owens said that he made several attempts to find an opening to get through the two trucks but none was available. At Third and Victory, he observed that the east bound traffic had sufficiently cleared for him to attempt to pass, and he accordingly started to the left of appellant's truck. According to the officer, no signal for a turn was made by the truck driver but the vehicle commenced a left turn, and the motorcycle struck the truck, and then went out of control. As a consequence, Owens was injured, and his injuries are not questioned on this appeal. Appellee testified that the red lights on the handle bars of the motorcycle were burning (in a constant, rather than a blinking light), that he had blown his horn several times previously, and also blew it before starting around the truck; admittedly, he did not sound his siren at any time. 1 While the question of substantial evidence to support the jury verdict is not at issue on this appeal, it might be mentioned that one apparently disinterested witness testified that the truck did give a left turn signal and another apparently disinterested witness testified that he did not see any signal for a turn. Only one point is relied upon for reversal of the judgment, viz., 'The trial court erred in submitting to the jury instructions with respect to the law applicable to authorized emergency vehicles'.
We agree that error was committed. Sub Section (b) of Section 75--725 Ark.Stat.Ann. (Supp.1969), provides inter alia:
'Every authorized emergency vehicle shall be equipped with a siren, whistle, or bell, capable of emitting sound audible under normal conditions from a distance of not less than 500 feet and of a type approved by the department, but such warning device shall not be used except when such vehicle is operated in response to an emergency call or in the immediate pursuit of an actual or suspected violator of the law, in which said latter events the driver of such vehicle shall sound said warning device when necessary to warn pedestrians and other drivers of the approach thereof.'
Sub Section (a) of Section 75--625 Ark.Stat.Ann. (Repl.1957), provides:
'Upon the immediate approach of an authorized emergency vehicle, when the driver is giving audible signal by siren, exhaust whistle, or bell, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to the right-hand edge or curb of the highway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.'
The court gave an instruction (AMI 912) relative to the...
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