80 Ark. 169 | Ark. | 1906
Lead Opinion
(after stating the facts.) 1. The uncontradi.cted proof by appellee and her witnesses shows that she was guilty of contributory negligence. She “deliberately” walked upon the track of a street railway after she had looked and knew that a car was coming. Fler only excuse was that, after she looked and saw the car, she “thought she would have plenty of time to cross,” and kept listening for the gong, but did not hear it until the car was upon' her. A more palpable case of contributory negligence it would be difficult to imagine. It was shown that her hearing was bad. This made it incumbent upon her to use the more diligently the unimpaired sense of sight, and to continue to use it until the danger had passed. St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549; St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 134. Instead, after seeing and knowing that the car was approaching on the track she had to cross, she practically closed her eyes, relying upon her judgment as to the distance the car was away and the time she had to cross, and upon her imperfect hearing to. protect her in case she was mistaken. She was mistaken, and the mistake was inexcusable, and must eliminate every charge of negligence in the complaint except the “failure of the motorman to use the means at his command to stop the car after he was apprised of her perilous position.” It has been difficult for us to determine whether the evidence in favor of appellee, giving it the strongest probative force of which it is súsceptible (St. Louis, I. M. & S. Ry. Co. v. Hill, 74 Ark. 478), was sufficient to >suport the verdict on this allegation. The- testimony of the motorman himself, pertinent to this proposition, is as follows:
“I turned this way, and I saw the lady, and it seemed to me that I was fifty or sixty feet away from her at the time I saw ‘hei\ It seemed to me that she was almost standing between the two inside rails of the two tracks. I was on the right-hand side, going east, and she was in between the north track and the south track, in between the two rails, seemed to be standing perfectly still. I thought at that time she was standing to wait for the car to pass, would step hack and wait for me to pass, and as soon as I saw her she was too close for me to go at that speed; so, as soon as I saw her — my current was already turned off — the brake chain is a chain something like that (indicating) — -it is owing to how- you j erk the chain, but it generally takes a round and a half sometimes a little more, to bring the car to a stop — I tightened up the brake and slackened the speed of the car, and began ringing my bell, began tapping with this foot, and then I tied my brake, I think, and by that time I was getting pretty close to her-— it was just a matter of a few seconds — and by that time she had stepped from her original position towards my inside rail, and then I saw, whether she moved or not, I was going to strike her. She had got too close to me, and I reversed the car. I was then fifteen feet away from her when I reversed the car — I can not tell, but something like that. I reversed the car, tightened my brake a little more. The action of the current running backward, the momentum was a little greater than the current at that time, and the car slid on a little and struck her while it was sliding. It knocked her down, and then the car stopped. The platform passed on over her.”
This evidence discloses the fact that the motorman discovered the appellee when he was 50 or 60 feet from her, and he knew at. the time he discovered her that she was too close to the track for him to go at the rate of speed he was then going. He testifies that the highest rate of speed of his car, from the time he stopped to take on a little boy at Seventh Street till the accident occurred, could not have been over ten miles an hour. True, this witness says he thought appellee was going to step back, and and let his car pass. He shows that the current was turned off, and that he began tightening the brake and ringing the bell when he first saw her, and that, in a few seconds, when he was fifteen feet from her he saw that he must strike her; he then reversed the car. But the proof by one of the witnesses was that when he was about twenty feet from her he looked toward the woman, then turned and spoke to some one on the platform with him. The witnesses on behalf of the appellee say that the car was going all the way from twelve to eighteen miles per hour. No one except the motorman observed any diminution in the speed of the car from the time when the motorman says he first saw her. Only two or three sounds of the gong were heard'by any other witness, and those were very dull and faint. There was no constant tapping of the gong. One of the witnesses did not see the motorman do anything until just before the car struck appellee, when he was trying to lean over and trying to stop his car, and seemed to be hallooing.
The testimony of witnesses for appellee differs widely from the motorman’s on some points. It was for the jury to determine the facts from all the testimony. After a careful consideration of it, we have concluded that the jury might have found that appellee approached appellant’s car tracks oblivious of her danger; that appellant’s motorman discovered her peril in time, by the use of ordinary care, tc prevent running her down, and that he failed to exercise such care. The motorman from the time he saw her could have diminished the speed of his car more than he did. Indeed he might have stopped it, or reversed it. It is clear that he had observed her, and equally clear that she had not observed him. Ordinary care under the circumstances required something more to be done toward giving a warning than attempting to sound a gong that, at best, would only give forth a faint sound. When he saw that she did not hear or was not heeding the warning, he should have hallooed, put on the brakes, and reversed the car, all before he did. The verdict should be sustained under the principle, announced by this court in St. Louis, I. M. & S. Ry. Co. v. Evans, 74 Ark. 407, and cases there cited.
The instructions of the court were full and clear on every point presented by the pleadings and proof, and, in view of what we have said, it was not error for the court to refuse to take the case from the jury on account of the contributory negligence of appellee.
Affirm the judgment.
Dissenting Opinion
(dissenting.) I was absent the week this case was decided, and did not-have the benefit of the consultation, and have had to go into it on the motion for rehearing for the first time.
There were several charges of negligence against the appellant company and counter charges of contributory negligence against appellee, the plaintiff below. These issues were sent to the jury, and also the question of proper care of the motorman to avoid the injury after discovering Mrs. Barnes’s peril. The latter issue, predicated upon Mrs. Barnes’s negligence and evidence of due care and want of due care after the discovery of her peril, was a proper question for the jury to determine. All the judges agree that there was evidence sufficient to sustain a verdict either way upon that point. This should have been the only issue sent to the jury. The opinion of the court shows that Mrs. Barnes’s own testimony shows she was guilty of contributory negligence.
A majority of the judges on rehearing reaffirm that fact. Therefore all questions of negligence against the company were eliminated by her contributory negligence, save alone the negligence after discovery of her peril. It was therefore a mistake for the court to affirm the case when other issues besides this one were sent to the jury. The court can not tell whether the jury found for the appellee upon the only proper question for them to determine or upon one of the several improper grounds that they were authorized to bottom a verdict upon.
It is thoroughly settled law that it is the duty of the court to refuse instructions based on unproved or unfounded hypotheses, and it is reversible error to submit a theory not warranted by the evidence. State Bank v. Hubbard, 8 Ark. 183; Worthington v. Curd, 15 Ark. 491; Sadler v. Sadler, 16 Ark. 628; Richardson v. Comstock, 21 Ark. 69; Marshall v. Sloan, 26 Ark. 513; Burke v. Snell, 42 Ark. 57; Little Rock & F. S. Ry. Co. v. Townsend, 41 Ark. 382; Beavers v. State, 54 Ark. 336; St. Louis, I. M. & S. Ry. Co. v. Denty, 63 Ark. 175; Snapp v. Stanwood, 65 Ark. 222; St. Louis, I. M. & S. Ry. Co. v. Woodward, 70 Ark. 441. Therefore it follows that the judgment should have been a reversal, instead of an affirmance. The majority of the court concede this mistake, but say that appellant is not in position to complain of the error, as it asked instructions relating to the contributory negligence of Mrs. Barnes.
The record shows that the court gave the instructions submitting these issues, and to each of them the appellant objected, and, its objection being overruled, excepted; and thereafter the appellant asked various instructions, among others these:
“2. One who is about to enter upon the track of a street railway where she knew that cars pass frequently at considerable speed must look and listen before entering upon such track, and must so look and listen when and where so doing will enable her to see and hear a car which is so near that she can not safely pass before it.
“4, If the evidence shows that in broad daylight, with no obstacles to prevent her from seeing an approaching car, the plaintiff stepped upon the track when the car which struck her was so near that it could not be stopped in time to avoid striking her, she contributed to her own injury, and can not recover."
None of the other instructions went to the issue of contributory negligence alone; they went to- that issue in connection with the care of the motorman after discovering appellee’s peril and to other phases of the case.
Invited error is predicated upon estoppel, and is invoked properly wherever the appealing party has induced the error, or acquiesces in it, or avails himself of the error to his own advantage. It is properly applied where the complaining party asks an instruction similar to the one attacked, and in many similar instances. Klein v. German Nat. Bank, 69 Ark. 140; Long-Bell Lumber Co. v. Stump, 30 C. C. A. 260, s. c. 86 Fed. 574; Elliott, App. Proc. § § 626, 627.
But this is not such a case, nor analogous in principle to it. Here .the court, over objection and exception, gives a certain theory to the jury. Then appellant seeks to minimize the error by asking_ instructions presenting phases of the inapplicable theory which, if applicable, would be favorable to his contention. This is not availing himself of the error to his advantage, nor an acquiescence in it, but a proper effort .to reduce the effect of the error to the least harmful form. Pie has not induced or brought about the submission of this question of contributory negligence; on the contrary, has objected -and excepted to it. The court presents only such phases of it as favor appellee, and it was, in my opinion, the duty of appellant’s counsel to then ask the court to give such phases of this theory as favored his contention, so that he might properly argue to the jury that appellee was guilty of contributory negligence. The court should have said she was guilty of contributory negligence, instead of leaving it to the jury; but, having left it to the jury, it was the right and duty of ‘appellant’s counsel to see that the law on that subject was fairly explained, so that the jury could understand that she was guilty of negligence. In other words, -if the law on that subject was going to be given, every phase appi «cable should be given, and not merely that favoring appellee. When the court made shipwreck of the case, it was appellant’s duty to obtain all the salvage possible, and I do not think the seeking to save salvage from the wreck is an estoppel to complain of the cause of the wreck.
It seems to me that this application of the doctrine of invited error is beyond the principle controlling the proper application of it, and is without precedent, so far as I can find; certainly without precedent in this State. I hazard the assertion that more than half the reversals in personal injury cases found in the reports would have been obviated, had this doctrine as now applied been earlier invoked. I think this decision is revolutionary of the practice, and has no sound basis to rest upon.
Rehearing
on rehearing.
Opinion delivered October 8, 1906.
Appellant insists that the court erred in holding that there was any proof that the motorman was guilty of negligence after he discovered the plaintiff’s peril.
We have carefully considered the testimony bearing upon this question; and while it is not without difficulty, we do not see any reason to change the views expressed heretofore. We adhere to the conclusion that there was evidence sufficient here to uphold the verdict.
It is also contended that, inasmuch as this court has declared as matter of law that the appellee was guilty of contributory negligence, it was error for the lower court to submit that question to the jury. If appellant had asked the trial court to declare that appellee upon the undisputed evidence was guilty of contributory negligence, and the trial court had refused, and it had excepted to the ruling, or if it had rested on its objection to the court’s instructions in which the question of contributory negligence was submitted to the jury, it would then be in a position to complain. But it did not make such request, nor rest on its objection to instructions given. On the contrary, by asking the court to submit the question of the contributory negligence of appellee to the jury on the evidence as a matter of fact, it abandoned its objections to the court’s instructions submitting that question, acquiesced therein, and waived any objections it might have raised here to the ruling of the court in submitting that question. Appellant did not ask the trial court to confine the jury to the question of whether or not the appellant discovered appellee’s perilous position and, having discovered same, failed to exercise ordinary care to avoid injuring her. Not having requested that the issue be narrowed to this inquiry in the court below, appellant can not complain here because it was not done.
True, appellant asked for peremptory verdict, but, as we have determined that there was a question for the jury, the court did not err in refusing this request.
As there was no error in the court’s charge of which appellant can complain here, the only question for us has been whether, giving the evidence its strongest probative force in favor of the verdict, it was legally sufficient to uphold it.
Judge Battue concurs in the judgment, but thinks that there was sufficient evidence to warrant the submission to the jury of the question of contributory negligence.