Jacks v. Reeves, 78 Ark. 426

Jacks v. Reeves

78 Ark. 426 | Ark. | 1906

Hill, C. J.

1. The appellee insists upon á dismissal of the appeal on the ground that the abstract is not prepared in accordance with Rule 9, in that parts of the evidence are copied literally and not abstracted, and the instructions are not set out in full. Counsel for appellant believed it was necessary to set forth in detail the evidence of the respective litigants, so as to fully present his cause, and the other testimony was stated. Counsel should always abstract and condense, where he can do so without injury to a proper presentation of the case, but the rule was never intended to compel the counsel to abstract when he felt it necessary to set forth in full. The instructions should always be set forth in full, and a failure to do so invokes the presumption that correct instructions were given curing those complained of, if they are curable. Carpenter v. Hammer, 75 Ark. 347, and cases there cited.

2. The charge consists of nine separate paragraphs, but they are not numbered, and the exception is to each and every instruction. The motion for new trial sets forth so much of the charges as it assigns as error. Appellee insists that this is an unavailing exception. The question of general and gross exceptions is discussed in Darden v. State, 73 Ark. 315; Young v. Stevenson, 75 Ark. 181; Wells v. Parker, 76 Ark. 41.

This case is disposed of on another ground, and the court will not pass upon this question.

3. The instruction chiefly complained of is this: “That the plaintiff, in order to entitle her to recover dathages under this action, is required to prove that the accident occurred through the negligence of W. D. Reeves.”

Abstractly, this is, of course, correct. No liability rested upon him except through negligence, but the instruction was misleading in this case in not being qualified or coupled with another one explaining that the evidence of the accident and injury following therefrom, when the occurrence was not out of the usual course, was prima facie evidence of negligence, and shifted the burden on to the defendant to prove that it was not caused by any want of care on his part. The facts disclosed in evidence brought this case squarely within this rule as announced in Railway Company v. Hopkins, 54 Ark. 213; Railway Company v. Mitchell, 57 Ark. 418; Arkansas Telephone Co. v. Ratteree, 57 Ark. 429.

The application of this rule to the duty of the owners of electric wires to the passerby is thus stated: “The occupier is not liable in the absence of negligence; but in some cases, as for example, the falling of an object from a building upon the highway, the accident itself, in the absence of explanation, is evidence of negligence. The maxim res ipsa loquitur is applied, and the defendant can only discharge himself by showing affirmatively that the accident was due to some cause consistent with due repair and careful management of the structure.” Keasbey on Electric Wires, § 232.

It is said that, the foregoing instruction being abstractly correct, appellant should have asked the qualification, and, failing to do so, can not complain of the court failing to give what was not asked when what was given was a correct statement so far as it went. Probably this is the correct view. As the case must be reversed on another ground, it is unnecessary, as heretofore stated, to decide these questions of practice.

4. The facts, briefly stated, are: Reeves owned a private telephone line running from his sawmill into the city of Helena. It was strung on trees and posts, and at places in the public road. The line was illy constructed, and usually in bad condition at places. The place in question was on one of the leading thoroughfares out of the city of Helena, about a mile and a half from the city. Owing to a broken pole, the wire sagged over the highway, and was in this condition for two days prior to the accident. In broad daylight Mrs. Jacks, Mrs. Fitzpatrick and Miss lone Fitzpatrick, drove along this road in a surrey drawn by a gentle horse. Miss Fitzpatrick was driving, and the other ladies were in the rear seat. The sagging wire caught the top of the surrey, made a rasping, scraping noise, tore off the top, and frightened the horse into running. The evidence is not clear whether Mrs. Jacks was thrown out or in her fright jumped out. Her last remembrance was the crash of the top of the surrey. She was seriously injured. The only evidence to rebut the presumption of negligence was that of Mr. Reeves. He says his teamsters passed this road nearly every day, and were instructed to give notice of the line being “out of fix,” and he had the line repaired when out of order. He was absent for several months, and left instructions with the foreman to repair it when it was reported out of order by the teamsters. No other means were adopted. There is a total dearth of evidence as to whether teamsters were passing at this time, whether the broken pole and sagged wire were observed or reported. The whole defense rested on mere instructions to teamsters to report to the foreman and to the foreman to repair when reported, and that some teamsters usually, passed there every day. The evidence is uncontradicted that the line was usually in bad order, and was crudely constructed along a much-traveled road, and the pole and wire, which caused this 'injury, were down for at least two days prior to the accident. It is obvious that this evidence was wholly insufficient to rebut the presumption of negligence.

The rule is thus stated: “Entirely apart from the fact that the wires may be charged with a dangerous current, the fact that such a structure is set up in a public street; even though duly authorized, involves the obligation to take care that it shall be constructed of good materials, in a substantial manner, so as to withstand all strains that may reasonably be anticipated, and that it shall be maintained in good order.” Keasbey on Electric Wires, § 233.

The appellee failed to affirmatively show “that the accident was due to some cause consistent with due repair and careful management of the structure.” Keasbey on Electric Wires, § 232.

The appellee contends that the question of contributory negligence was properly submitted to the jury, and that there was evidence justifying the jury in finding appellant guilty of contributory negligence. The statement from Keasbey, supra, (§ 230) is relied upon: “It is not to be expected that a man in driving, or even in walking along a street, will see a small wire stretched across the way or lying upon the pavement when he has a right to suppose that the street is unobstructed; and the fact that he runs into such a wire is not held, as a matter of law, to be contributory negligence, but the question whether he exercised due care will be left to the jury.” The author cites no authority for this statement, but likely it is a fair deduction from the cases. Many of them are reviewed and cited in this section, and they are cases where the.traveler saw the wire or knew it was there. Conceding, without deciding, the above statement to be correct, still it does not reach to this case. Certainly it is not expected or required of a traveler driving easily along the middle of a much-traveled highway to be looking up to see if perchance a stray wire is in reach of the top of the vehicle.

■It is said that contributory negligence may have been inferred from .permitting a fourteen-year old girl to do the driving. It can not be said as a matter of fact or of law that it is negligence for a fourteen-year old girl accompanied by two grown women to drive a gentle horse along'a public highway in broad daylight.

It is also said that if Mrs. Jacks had stayed in the surrey, instead of jumping out, she would not have been injured. The evidence is not clear whether Mrs. Jacks jumped out or was thrown out; nor is it the least material. When any one is in danger through the negligence of another, his action in the emergency suddenly thrown upon him can not be weighed- in scales to determine whether he acted wisely or foolishly in the imminency of great danger. This has been too often held to need citations. The court fails to find any contributory negligence in evidence.

The judgment is reversed, and cause remanded for a new trial.

Wood, J., dissents; McCulloch, J., disqualified and not participating.