Williamson v. Garrigus, 5-1454

• Decision Date: 17 February 1958
• Docket Number: No. 5-1454,5-1454
• Citation: 228 Ark. 705,310 S.W.2d 8
• Parties: Thomas WILLIAMSON, Appellant, v. John GARRIGUS, Appellee.
• Court: Arkansas Supreme Court

Page 8

310 S.W.2d 8

228 Ark. 705

Thomas WILLIAMSON, Appellant, v. John GARRIGUS, Appellee.

No. 5-1454.

Supreme Court of Arkansas.

Feb. 17, 1958.

John G. Rye, Russellville, for appellant.

Richard Mobley and Williams & Gardner, Russellville, for appellee.

HOLT, Justice.

Appellee, Garrigus, brought this suit to recover damages for personal injuries which resulted when he was struck by an automobile driven by appellant, Williamson. Appellant denied any liability, alleging as a complete defense and bar, contributory negligence of appellee. By agreement a jury was waived and trial was had before the court, sitting as a jury, which resulted in a finding and judgment for appellee in the amount of $8,961.85. This appeal followed.

For reversal appellant contends that the evidence shows that he was free from any negligence, that appellee was guilty of contributory negligence barring any recovery, and that the verdict was excessive.

The testimony shows that appellee was walking diagonally across Main Street in Russellville between street intersections, or 'jaywalking' as it is sometimes called, when he was struck by appellant's car. A fair summation of the facts, we think, is contained in the following findings and conclusions of law of the trial court:

'* * * defendant (appellant), williamson, in driving south on Arkansas Avenue, turned simultaneously with another car, not identified, being driven north from South Arkansas Avenue into Main Street. That according to defendant's (appellant's) testimony, the two cars traveling to the West, were at least at the point of the accident, almost abreast. Defendant (appellant) stated that his car was about half the distance of the other car to the rear, and that about one yard separated the two cars, north and south. In response to question asked by his attorney, Mr. Williamson stated that his view to the left was obstructed. Other witnesses testified that just prior to the accident, the preceding car was about 10 or 15 feet in the front of the Williamson car. Based upon the testimony of the defendant (appellant), who was in a better position to observe the true physical conditions and location of the two cars, assuming there were two cars, than that of other witnesses who were a considerable distance away, defendant (appellant) from the point of turning from Arkansas Avenue into Main Street, traveled a considerable portion of distance, just behind the second car he testified to, or almost parallel with the car driven to his left. Accepting this testimony as true, defendant continued to drive with his view to the left obstructed and at the rate of speed he was driving, 20 to 25 miles an hour, did not have his car under such control as to be able to avoid the accident. * * * He (appellant) placed his car to the right of the car just preceding him, about a yard interval between the two cars. * * * 'I would say that the front of my car was about even with the middle of his (second car).' Defendant (appellant) also stated in response to question by the court that plaintiff, Garrigus, stepped from in front of west bound car to his left in front of Williamson car. * * * Mr. Garrigus was an old man, moved very slowly with a shuffling walk, and if the two cars were traveling parallel or partially parallel as described by defendant (appellant), without any decrease in speed of either car, to have moved into the lane traveled by defendant (appellant), plaintiff (appellee) would have (had) to jump or to say the least, moved rapidly from the front of the other car.

'Mr. Charles Wilson testified: 'I didn't see any cars until I saw this car down in front of the courthouse, the first I saw, and Uncle John (plaintiff-appellee) came out * * * it seems like * * * he walks kind like (indicating) and he was trying to get out of the way of the car, is the way it looked to me.' From this testimony, as given, plaintiff (appellee) apparently saw the Williamson car and sought to avoid being struck. The 'other car' apparently was not seen by Mr. Wilson. The weight of the testimony, however, rather sustains the finding that there was a second car.

'Viewed from the whole of the testimony heard in the trial, it is the finding of the court that defendant was guilty of negligence in the manner of the operation of his automobile immediately prior to and at the scene of the accident. In examining the testimony of defendant (appellant), which has been transcribed for the benefit of the court, in no particular does he testify that he was keeping a constant lookout as required by law. It may be assumed of course that defendant was looking ahead, but apparently not laterally. While defendant (appellant) testified that he was not exceeding the speed limit, it would not necessarily follow that under the existing conditions he was justified in driving at the legal rate of speed. Cars were parked on the north side of Main Street. Sufficient room remained north of the center line to permit two lanes of travel, but the right portion of the street would be limited and would require careful, prudent driving. Motorist, under the existing conditions attendant on one of the main traveled streets would be required to anticipate the presence of pedestrians, and this would require a constant, continuous lookout.'

It appears that due to loss of memory, appellee was unable to testify in this case.

The relative duties of the pedestrian and motorist, in circumstances such as are presented here, have many times been announced by this court, both have equal rights in the use of streets and highways. Motorist, in operating automobiles, must keep a constant lookout to avoid injury to pedestrians, see Northwestern Casualty & Surety Co. v. Rose, 185 Ark. 263, 46 S.W.2d 796, and must anticipate the presence of pedestrians on streets and exercise reasonable care to avoid injuring them, see Morel v. Lee, 182 Ark. 985, 33 S.W.2d 1110; Self v. Kirkpatrick, 194 Ark. 1014, 110 S.W.2d 13; Pate v. Fears, 223 Ark. 365, 265 S.W.2d 954; Black and White, Inc. v. Fisher, 224 Ark. 688, 275 S.W.2d 876...