Yocum v. Holmes

• Decision Date: 01 June 1953
• Docket Number: No. 5-102,5-102
• Citation: Yocum v. Holmes, 258 S.W.2d 535, 222 Ark. 251 (Ark. 1953)
• Parties: YOCUM v. HOLMES et al.
• Court: Arkansas Supreme Court

Page 535

258 S.W.2d 535

222 Ark. 251

YOCUM v. HOLMES et al.

No. 5-102.

Supreme Court of Arkansas.

June 1, 1953.

Rehearing Denied June 29, 1953.

Barber, Henry & Thurman and Tom Gentry, Little Rock, for appellant.

John E. Hooker, Conley F. Byrd, Pine Bluff, for appellees.

ROBINSON, Justice.

Appellee Hazel Lee Holmes, alleged widow of Thomas T. Holmes, and administratrix of his estate, recovered a judgment in the sum of $15,000 for the benefit of the infant son of the deceased Holmes who was killed when struck by an automobile operated by appellant Alford M. Yocum.

In the complaint the administratrix asked for judgment in the sum of $10,000 to compensate her personally for the loss of her husband and $5,000 for her mental anguish; also $124,654.40 for the benefit of the estate and $5,000 for the benefit of the estate for conscious pain and suffering of the deceased, and $500 for medical, hospital, and funeral expenses. The court directed a verdict for the defendant so far as the rights of the alleged widow were concerned, on the ground that there was no showing that she was ever legally married to the deceased. The jury returned a verdict for the defendant on the issue of pain and suffering on the part of the deceased, and a verdict for the benefit of Thomas T. Holmes, Jr., son of the deceased, in the sum of $15,000.

On the morning of March 18, 1952, Thomas T. Holmes left his residence on West 16th Street in Pine Bluff, Jefferson County, at about 5:15 a. m. to go to work. It was his custom to walk up the railroad right-of-way to Sixth Avenue and thence to the Implement Truck & Supply Company where he would catch a ride to the place where he worked. On the morning in question it was raining and Holmes was wearing black rubberized pants of a rain suit and a dark leather jacket. There was no sidewalk; he was walking west on his righthand side of the street. The appellant, Alford M. Yocum, was also on his way to work in his automobile, travelling west on Sixth Avenue on his proper side of the street. His automobile struck Holmes, who died a short time thereafter as a result of the injuries received, which consisted of a badly broken left leg and severe brain injuries. The automobile struck him with such force that he was knocked up onto the hood of the car, making a large dent therein, across the hood breaking off the radio aerial, and thence to the ground. Appellant earnestly contends there is no evidence of negligence on his part, and that Holmes was guilty of negligence in walking in the street in the nighttime during a hard rain while wearing a black rain suit, and in failing to see the appellant's car when the headlights were burning brightly.

Negligence is the doing of that which an ordinarily prudent person would not do under the circumstances, or the failure to do that which an ordinarily prudent person would do under the circumstances. It cannot be said as a matter of law that it is negligence for one to walk in the street where there is no sidewalk, or to go to work when it is very dark, or to wear a black rain suit when it is raining; nor can we say as a matter of law that all of these things considered together constitute negligence. It is not known definitely whether Holmes saw Yocum's car approaching; but in any event it was a question for the jury to say whether Holmes was negligent in failing to get out of the street to avoid being struck by the car. Apparently Holmes and the automobile were going in the same direction; the jury could have found that Holmes did see the reflection of the lights and knew that the car was approaching, but without negligence on his part assumed that the driver of the car also saw him and would pass to his left. Whether Holmes was guilty of contributory negligence in the circumstances was a jury question.

It was also a jury question as to whether Yocum, the driver of the car, was guilty of negligence. He testified he did not see Holmes until the instant the car struck him, although the lights on his automobile were burning.

B. C. West, a city patrolman, answered a call to the scene and arrived about 10 minutes later. He testified that it was raining but he could see in the beams of the headlights of his car a distance of about half a block. Yocum makes no contention that he saw Holmes before the instant of striking him; but says that in the circumstances he was not negligent.

Jack Gragg lives about 100 feet from the place where Holmes was injured, and he heard the impact. Dr. E. Frank Reed testified that Holmes' injuries consisted of a severe contusion on the left side of his head and a compound fracture of the bones of the lower left leg; about 4 inches of bone protruded from the wound. In his opinion the force of the object which struck Holmes came from the rear.

The evidence when viewed in the light most favorable to the appellee justifies a jury finding that Yocum, the driver of the automobile, negligently failed to keep a proper lookout for other users of the street.

In Breashears v. Arnett, 144 Ark. 196, 222 S.W. 28, the appellee Arnett had come out of a picture show and crossed the street at that point; and when about 10 feet from the curb on the opposite side of the street, was struck by an automobile driven by Breashears. There was some testimony to the effect that the automobile was being driven at a greater rate of speed than was ordinarily the custom upon the roads or streets. Appellant testified he was going about 10 miles an hour. Mr. Justice Wood, speaking for the Court, said the issues of negligence and contributory negligence are questions of fact for the jury.

In the case of Adams v. Browning, 195 Ark. 1040, 115 S.W.2d 868, a Laura Adams, administratrix of the estate of Richard Franklin, filed suit against Browning for the negligent killing of Franklin. It developed that Browning's automobile was travelling rapidly and Franklin was walking in the same direction with the back to the car, and apparently did not see it approaching until about the time it struck him. At the close of plaintiff's testimony the defendant requested and the court gave to the jury an instruction to find for the defendant. The cause was reversed for the trial court's error in directing a verdict, and this Court said: 'Under our system of jurisprudence, it is the province of the jury to pass upon the facts. It is not only their privilege but their right to judge of the sufficiency of the evidence. The credibility of the witnesses, the weight of their testimony, and its tendency, are matters peculiarly within the province of the jury. If there is any substantial evidence it is the duty of the court to submit the matter to the jury.'

In Northwestern Casualty & Surety Co. v. Rose, 185 Ark. 263, 46 S.W.2d 796, 797, an issue was involved as to the negligence of a Mr. Rose in driving an automobile into and upon a Mr. Bonner. It was a rainy evening in November; it was dark but the street lights had not yet been turned on. Rose had passed an intersection about four car lengths 'when all at once a man loomed up in front.' In affirming a judgment based on the negligence of Rose, this Court said: 'the jury might have inferred that under the conditions then existing the lights [on the automobile] were burning, and, if so, that they cast light a sufficient distance ahead to enable Bonner's presence on the street to have been discovered in time for...