| Ark. | Oct 21, 1918
Lead Opinion
(after stating the facts). 1. It is first insisted that the court erred in permitting the defendant to read to the jury as evidence the motion for a continuance in the case of T. H. Miller v. Ft. Smith Light & Traction Company. It appears from the record that T. H. Miller was the husband of Ruby Miller, and had also brought suit against the defendant for injuries, received by him in the same accident. His case was set for trial first, and the defendant filed a motion for .a continuance, which the court announced would be granted unless the testimony referred to in the motion for a continuance was allowed to be read in each of the cases. The same attorneys represented both the husband and wife. It was agreed that the testimony set out in the motion for a continuance should be read in each case. Hence there was no error in this respect.
2. It is next insisted that the court erred in refusing to give instruction No. 13 at the request of the plaintiff. The instruction is as follows: “If you believe from the evidence that the operatives of the street car were running said car along North Eleventh Street at an excessive and rapid and dangerous rate of speed, and at such a rate of speed that they could not stop the ;same in time to avoid a collision, if an automobile should or might appear from the west, and to the rear of the street, or on the west track, then the operatives would be guilty of negligence, and if the injury to Ruby Miller was caused thereby, as explained herein, then the jury should find for the plaintiff, Ruby Miller.”
In the first place, it may be .stated that this instruction was defective for the reason that it told the jury that if the street car was “running at such a rate of speed that the employees could not stop same in time to avoid a collision if an automobile should or might appear from the west, then operatives were guilty of negligence.” This instruction would have made it the absolute duty of the motorman to have had his car under such control that he could stop it every time a vehicle came upon the track and would have made it the insurer of the safety of persons driving automobiles. This is not the law. The defendant was only required to have its cars under such control that they could be stopped so as to prevent injury to persons using the street in the ordinary and usual manner. Instructions on the relative duties of the street car company and those driving automobiles as to their use of the streets are fully covered in other instructions given by the court.
3. It is also claimed that the court erred in giving instruction No. 17 at the request of the defendant. Instruction No. 17 is as follows: “The court instructs the jury that, although the plaintiff may not have been the driver of the automobile mentioned in the testimony, nevertheless plaintiff, situated as she was, had no right to rely implicitly upon the care and prudence of the driver on the seat beside her for her own safety, but it was her duty, if said driver was approaching said Eleventh Street, on which cars were passing at a careless rate of speed, to attempt to have him check his speed to a safe rate, and if the jury find that under the circumstances said automobile was approaching defendant’s tracks at a careless rate of speed, and the plaintiff, situated as she' was, made no effort to have said speed diminished, and that such action of the plaintiff contributed directly to said collision and her injuries, then she cannot recover, and your verdict must be for the defendant. ’ ’
In an instruction on behalf of the plaintiff the court told the jury that the negligence of the husband could not be imputed to his wife, and that if the injury happened on account of the combined negligence of the driver of the automobile and the motorman the plaintiff could recover. This is in accord with the rule in the case of the Hot Springs Street Railroad Co. v. Hildreth, 72 Ark. 572" date_filed="1904-07-02" court="Ark." case_name="Hot Springs Street Railroad v. Hildreth">72 Ark. 572; see also, Carter v. Brown, 136 Ark. 23" date_filed="1918-10-21" court="Ark." case_name="Carter v. Brown">136 Ark. 23. The instruction on this point given by the court at the request of the plaintiff is as follows: “10. If the plaintiff, Ruby Miller, was at the time of the collision a passenger in an automobile over which she had no control, and if she was not at the time directing or controlling its movements, then the negligence of the driver of the automobile, if there was any negligence on his part, cannot be imputed to the said Ruby Miller, and if under those circumstances the driver of the automobile was negligent, that negligence, if you should find it existed, cannot defeat a recovery by the plaintiff Ruby Miller, provided the negligence of the defendants, if any, combined with the ne'gligence of the driver, if there was such negligence, caused the injury to the said plaintiff, Ruby Miller. (But if you find that the negligence of the driver of the automobile was the sole cause of the accident, you will find for the defendant).”
In a case note to 8 L. R. A. (N. S.) at p. 659, it is said that the great weight of authority is in favor of the proposition that the negligence of a husband is ordinarily not imputed to his wife in case she is injured by his and another’s concurring negligence. While the negligence of the driver is thus not imputed to the guest, the circumstances may be such as to make it the duty of the guest to warn the driver of the impending danger, or otherwise try to control him. The passenger is thus held responsible for his own negligence, but not for the negligence of the driver. In other words, the rule is that one who, while riding in a private conveyance of another, is injured by the negligence of a third party may recover against the latter, notwithstanding that the negligence of the driver contributes to the injury, where the person injured is without fault and has no authority over the driver. Colorado & Southern Ry. Co. v. Thomas (Col.), 3 A. & E. Ann. Cas. 700, and note; Shultz v. Old Colony Street Ry. Co. (Mass.), 9 A. & E. Ann. Cas. 402 and note, and Cotton v. Willmar & Sioux Falls Ry. Co. (Minn.), 9 A. & E. Ann. Cas. 935. This rule of law is recognized by this court in St. Louis & San Francisco Ry. Co. v. McFall, 75 Ark. 30" date_filed="1905-04-08" court="Ark." case_name="St. Louis & San Francisco Railroad v. McFall">75 Ark. 30. When instructions Nos. 17 and 10 are read and considered in the light of the principles of law above announced, it will be seen that they are not in conflict, but each has its appropriate sphere in presenting the respective theories of the parties to the jury in this case.
It is next insisted that instruction No. 17 is erroneous because there is no evidence that the plaintiff was on the seat with her husband when the automobile collided with the street car. It is true that there is no direct testimony to that effect, but we think that it is fairly infer-able from the whole record that she was riding on the same seat with her husband. The plaintiff herself said so inferentially. She said that she was riding with her husband; that he was running the automobile; that both she and her husband saw the street car approaching; that she saw her husband change the gear of the automobile. Moreover if the counsel for the plaintiff thought the rights of the plaintiff would suffer by the form of the instruction, they should have made a specific objection to it. The instruction dealt with a phase of the law that was proper to be submitted to the jury under the circumstances, and this was without regard to the fact of whether the plaintiff was sitting on the front or back seat of the automobile, Having made no specific objection to the instruction at the trial, they are not now in an attitude to complain of its verbiage.
4. It is next insisted that the court erred in refusing to give instruction No. 4 upon the request of the plaintiff. The instruction is as follows: “It was the duty of defendant’s motorman on the northbound street car, in approaching a street crossing at a blind corner, where his view is obstructed, if the evidence shows such blind corner, or his view was obstructed, to use due care in the operation of his car, which care required that he should have his car under control, that he should sound his gong or whistle and listen, .as well as look, for automobiles that might be approaching the street upon which the car was traveling, for the purpose of crossing the same. If in this instance the evidence shows he failed to have the car under control or failed to see or hear the approaching automobile in time to stop or attempt to stop his car before colliding with same, if the evidence shows they did collide, and that this failure upon his part was due to inattention to his duties, as above set out, then such failure was negligence on his part. ’ ’
The court did give instruction No. 7, which is as follows : “In the operation of .street cars in a city, it is the duty of the operatives of the said cars to exercise due care. In the exercise of due care the operatives must be governed to some extent by the circumstances that surround them ,at the various places along their line. If defendant’s employees and operatives had stopped one of defendant’s street cars on the west track and south bound .and on the south side of H Street (at the crossing) in such a way as to obstruct the view of the operatives of the north bound street car which collided with the automobile from seeing west on H Street; then the operatives of the northbound street car (if you find these facts to be true) would be required to exercise a higher degree of care in proportion to the greater danger; the operatives should reduce the speed or take other precautions so as to have their car under such control as would enable them to avoid dangers and injuries to others.”
A comparison of these two instructions shows that the matters embraced in the refused instruction are completely covered by the instruction given, and instruction No. 7 presents the issues in favor of the plaintiff in a more concrete form than does instruction No. 4, which the court refused. The only blind corner claimed by the plaintiff was that the southbound street car stopped on the wrong side of H Street for the purpose of receiving and discharging passengers.
5. Finally it is insisted that the court erred in telling the jury that there was no evidence that the street car was defectively equipped with brakes, and also that it erred in refusing to allow the plaintiff to .introduce in evidence the following ordinance:
‘ ‘ Sec. 853. Gars, How Equipped.- — That all ears used or operated between October 15 and April 15 of each and every year during the life of this franchise shall be vestibuled, lighted and heated, and provided further, that all cars operated shall be equipped with both mechanical and ratchet lever hand brakes, and with head lights, all to be of the most approved pattern, and all interurban cars shall be equipped with air brakes of direct system and lever hand brakes, with braking power on all four wheels at the same time, fenders on both ends of cars to be approved by the council, all cars to be equipped with sand pipes, electric bells and all other modern appliances used on up-to-date street cars for the protection, convenience and comfort of passengers.”
These two assignments of error refer to the same matter and may be considered together. It appears from the record that the street car in question was not used in interurban service, but was operated wholly within the incorporate limits of the city of Ft. Smith. The undisputed evidence shows that it had a ratchet lever hand brake and that it was in perfect operation. It is true the car was not equipped with air brakes, but, not being an interurban car, it was not required to be so equipped. It will be noted that under the provisions of the ordinance only interurban cars are required to be equipped with both air brakes of the direct system and ratchet lever hand brakes, with braking power on all four wheels at the same time. Cars operated wholly within the city limits were not required to be equipped with air brakes, but only with mechanical and ratchet lever hand brakes. It follows that the court did not err in giving the instruction or refusing to allow the ordinance to be introduced in evidence.
Other assignments of error on account of the action of the court in giving .and refusing instructions are pressed upon us for a reversal of the judgment. We do not deem it necessary to set them out or to further notice them than to say that the court in giving and refusing instructions was governed by the principles of law announced in the following cases: Ft. Smith Light & Traction Co. v. Hendrickson, 126 Ark. 377" date_filed="1916-11-13" court="Ark." case_name="Fort Smith Light & Traction Co. v. Hendrickson">126 Ark. 377; Karnopp v. Ft. Smith Light & Traction Co., 119 Ark. 299, and Ward v. Ft. Smith Light & Traction Co., 123 Ark. 559.
We find no prejudicial error in the record, and the judgment will be affirmed.
Rehearing
(on rehearing). Counsel for the plaintiff claim that the court erred in affirming the ruling of the trial court in instructing the jury that there was no evidence that the street car was defectively equipped with brakes and in refusing to allow the plaintiff to introduce in evidence a section of its franchise ordinance as to how cars should be equipped. In her complaint the plaintiff alleges that the defendant neglected its duty in running summer street cars on its interurban line which were not vestibuled or equipped with air brakes of the direct system, mechanical and ratchet lever hand brakes. The undisputed proof showed that the'car in question was operated wholly within the corporate limits of the City of Ft. Smith and was not used in the interurban service. Hence the question of whether cars operated wholly within the city should be equipped with both mechanical and ratchet lever hand brakes was not an issue in the case, and the court properly held that the ordinance in question was not admissible'. The section of the ordinance was copied in our original opinion, and reference only need be made to it here.
The court also properly instructed the jury that there was no evidence that the street car was defectively equipped with brakes. As above stated, the car was not required to have air brakes. The undisputed testimony shows that it was equipped with a ratchet lever hand brake, and that this brake was in perfect order. There was no proof to show that it was in anywise defective, and that was not an issue in the case. The case was tried solely on the ground that another street car had stopped at a place for the purpose of discharging and receiving passengers where it was not allowed under the ordinance to stop for that purpose, and by its wrongful action in this respect created a blind corner which prevented the motorman on the car in question from seeing the approach of the automobile in which the plaintiff was riding. ' The plaintiff in bringing her action evidently proceeded on the theory that the car in question was in the interurban service, and that there was negligence on the part of the defendant in not having it' equipped with air brakes. When she found out that the car in question was not used in the interurban service, but was wholly operated within the corporate limits of the city, she should have amended -her pleadings to allege negligence with respect to the kind of brakes used there if she intended to make that an issue in the case. Not having done so, she is not in an attitude to complain at the ruling of the-court in this regard. The motion for rehearing will be denied.