Ward v. Fort Smith Light & Traction Co., 123 Ark. 548

Ward v. Fort Smith Light & Traction Co.

123 Ark. 548 | Ark. | 1916

Hart, J.,

(after stating the facts). (l-'2) I. It is insisted by counsel for appellant that the court erred in excluding the testimony of certain witnesses tending to show the high rate of speed of the street car at places along the track on Fifth street before the car reached C street. The witnesses referred to are W. H. Sailor, Louis Adams and Mrs. Ed. Haglin. The record shows that on the night of the accident, W. H. Sailor resided at 929 N. Fourth street. His residence was therefore about eight blocks from'the scene of the accident and one block from the street car line. He testified that he observed the car as it passed prior to the time of the accident but he stated that he did not know anything about the speed of a street car or a railway train. He said of course he could tell whether a car was running fast or slow. He was then asked if the ear in question was traveling at a high or low rate of speed and an objection was made and sustained to the question. While the witness was not permitted to answer the question, it was not shown what his answer would have. been. No effort was made to prove any specific fact by the witness in response to the question. This court only reverses for prejudicial errors and in order to obtain a review of the ruling of the trial court, it was necessary to show what the answer of the witness would have been. Boland v. Stanley, 88 Ark. 562; New Hampshire Fire Ins. Co. v. Blakely, 97 Ark. 564.

(3) Louis Adams lived af 410 N. E street. He was permitted to testify that he was awakened by a car going by just before the time of the accident, but stated he could not tell at what rate of speed the car was going by the noise it made. The court stated that it.would permit him to testify as to whether or not he knew that the car was going at a high or low rate of speed. The witness again stated that he could not tell the rate of the speed at which the car was going by hearing it. He was asked the direct question “Could you tell by hearing it pass whether it was passing at a high or low rate of speed?” His answer was, “I could not tell anything about the speed of the car on account bf the fact that I do not know how far it got from me before I got wide awake.” Then he was asked: “If you heard that car pass your house couldn’t you tell whether or not it was traveling at a high or low rate of speed?” This question was objected to and the objection sustained. Here again no attempt was made to show what the answer of the witness would have been and the action of the court was not reversible. Moreover, the witness had already stated that he could not tell at what rate of speed the car was going by hearing it pass. He had made this answer twice and it was in the discretion of the court not to allow a repetition of the same question. Mrs. Haglin resided at the comer of Fifth and D streets. 'She was first permitted to state that it seemed to her that she had never heard the owl car going by as fast as it did just before the accident. She further stated that she did not pay attention to the car after it passed her house but that she heard it approach. It was then offered to prove by her that the car which came into collision with the automobile was going by at a high rate of speed when it passed her house and the court refused to permit this testimony to go to the jury. At the time the testimony was offered there was no showing as to whether or not the car was stopped after it passed her house or checked its speed before it reached the scene of the accident. She stated that she did not pay any attention to the car after it passed her house. Under these circumstances, the action of the court was not reversible error. Afterwards appellant was permitted to show that the car was going at a high rate of speed for several blocks before it reached the crossing at C street. Doubtless if the counsel had again offered the testimony, the court would have permitted it to go to the jury-

(4) ’ II. Counsel for appellant insists that the court erred in refusing to permit the witness Creekmore to testify that he had had a race with one of the cars of appellee at another time .and place, and that this car had passed his automobile while his automobile was going at the rate of thirty-eight miles per hour. Appellee had shown by two witnesses that car number 22, being the car that collided with the automobile, was geared for twenty-three miles an hour; that they had made a test of the speed of this car on a-straight track and the car had made twenty-three miles per hour in one direction and twenty-seven miles per hour in the other one, the latter course being slightly down grade. Counsel for appellee confined the testimony of its witnesses to the speed of car number 22 and did not ask with reference to the speed of any other of its cars. On cross-examination counsel for appellant asked about the speed of other cars, but it was not shown that these cars were geared in the same way as car number 22, or were so constructed that they would naturally have the same speed. Under these circumstances the court was right in excluding the'evidence because the excluded evidence related to collateral transactions and would tend to confuse the issues. Greenleaf on Evidence, volume 1, section 14a; 1 Elliott on Evidence, section 157. If the appellee had brought out that its other cars could not run faster than a given rate of speed, then there might be much force in the argument of counsel for appellant and it might be said that the evidence should have been admitted in rebuttal.

(5) III. It is claimed by counsel for appellant that the court erred in admitting the testimony of Jim Crowe, the driver of the automobile, as to the place Ward and Milton had been just prior to the accident. It is a sufficient answer to this assignment of error to say that Carroll Milton, the companion of Ward, testified without objection as to the place, they had been when they called the automobile. Therefore, no prejudice could have resulted to appellant on this account and we neech not consider further this assignment of error. Crowley v. State, 103 Ark. 315.

(6) IV. The next error assigned by counsel for appellant is the alleged refusal of the court to permit certain traffic ordinances of the city of Fort Smith to be read in evidence. The record shows that the court permitted to be read to the jury, the ordinances offered by counsel for appellant. It is true the court limited the purpose for which the jury might receive one of the ordinances introduced, and the record does not show that counsel for appellant excepted to the action of the court in this regard. It-follows that the assignment of error is not well taken.

V. It is next contended that the court erred in refusing to give instruction number 1 -asked for by counsel for appellant. The instruction reads as follows:

“1. The complaint charges that the defendant was guilty of negligence (1) by running the street car at a high, excessive and terrific rate of speed over the streets of the city of Fort Smith, and that without warning, and that it was also negligent in not keeping a proper and careful lookout ahead for persons that might be upon its track in said city, and that it was also negligent in not stopping the street car after the operatives of said street car had observed the perilous position of the plaintiff, and that defendant wilfully and wantonly ran said car down upon the deceased, and killed him. Each- of these acts of negligence is denied by the defendant, and it also alleges contributory negligence on the part of the deceased. These are the issues to be tried by the jury.” The court however gave instruction A which reads as follows:

“A. The plaintiff seeks recovery upon three , alleged grounds of negligence of the defendant’s employees operating the street car, towit: (1) That they were operating the street car at an unlawful, violent and terrific rate of speed and without warning by bell or otherwise. (2) That they were not keeping a proper lookout for persons and property upon the tracks. (3) That the motorman, after he had discovered the dangerous and perilous position of the automobile in which Ward was riding failed to use reasonable efforts to stop said car and prevent the injury. Before the plaintiff can recover he must establish by a preponderance of the testimony that the defendant was guilty of some one of said alleged acts of negligence, and further, that said act of negligence, if proved, was the direct cause of the injury.”

(7) It will be seen that the issues presented by instruction number 1 are clearly stated in instruction A and' it is well settled that the court is not required to multiply or repeat instructions.

VI. It is next insisted that the court erred in refusing to give instructions numbered 3 and 5. The instructions read as follows:

“3. If Joe N. Ward, Jr. was a passenger in the automobile, and if the driver of the automobile was negligent, and if the operatives of the street car were negligent, and if the negligence of said driver and operatives combined and caused the death of said Ward, then the' jury should find for the plaintiff.”

“5. If the street car was negligently operated, and if that negligence either alone or combined with the negligence of the driver of the automobile, caused the death of Joe N. Ward, Jr., then it will be the duty of the jury to find for the plaintiff.”

The court, however, gave instructions numbered 2 and 4, at the request of counsel for appellant. They read as follows:

“2. If the deceased, Joe N. Ward, Jr., was .at the time of the collision a passenger in the automobile and if he was not at the time directing or controlling its movements, then the negligence of the driver of the automobile, if there was such negligence, can not be imputed to said Joe N. Ward, Jr., and if under those circumstances the driver of the automobile was negligent, that negligence if it existed, can not defeat a recovery by the plaintiff, herein; provided the negligence of the defendant, if there was such negligence, caused the death of said Joe N. Ward, deceased. 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. ”

“4. If the jury should find that the death of Joe N. Ward, Jr., was caused by the combined negligence of the driver of the automobile, and the street car operatives, the fact that the owner of the automobile and the driver thereof are not joined as defendants, will not defeat the right of the plaintiff to recover against the defendant, if the latter was negligent as herein defined, if you find under the other instructions that plaintiff is entitled to recover. ”

(8) The issues embraced in three and five are clearly presented in instructions 2 and 4. The contributory negligence of decedent was not submitted as an issue to the jury. No instruction authorizes the jury to pass upon that question. The court plainly told the jury in a number of instructions that no negligence of the driver of the automobile could be imputed to the decedent. The instructions when considered as a whole plainly told the jury that if decedent was killed by the concurrent or combined negligence of appellee and of the driver of the automobile that appellant had a right to recover; that no negligence of the driver of the automobile affected appellant’s right to recover unless the negligence of the driver of the automobile was the sole cause of the accident.

The car track ran along Fifth street, and C street crossed it at right angles. The accident occurred at the junction of Fifth and C streets. There was evidence tending to show that the street oar approached the' crossing at a high rate of speed and that the motorman failed to give the signal of the approach to the crossing. According to the evidence of appellant, the street car was going faster than allowed by the traffic ordinances of the city. It also appears from the evidence adduced by appellant that the automobile very nearly stopped as it approached the crossing and the occupants of the automobile were in ■a position where they could and naturally would have heard the signal for the crossing if it had been given by the motorman operating the street ear.

(9) The evidence was sufficient to carry the case to the jury upon the question of defendant’s negligence. There is an irreconcilable conflict in the decisions as to the effect of the violation by a street railway company in the operation of its cars of regulatory ordinances, designed to promote the public safety. Our court has already taken a position on this question. According to our decisions, the mere fact that the street car was driven at a rate of speed forbidden by the city ordinances would not be considered proof of negligence as a matter of law. It is but an evidential fact tending to prove negligence and the question of negligence is one of fact for the jury. Bain v. Fort Smith Light & Trac. Co., 116 Ark. 125.

In the case of Pankey v. Little Rock Ry. & Elec. Co., 117 Ark. 337, the court held, “A street car company has the paramount or preferential right-of-way .along the place occupied by its tracks, whenever the point arises that one must yield, either the company in the operation of its cars, or the traveler along or across the street; but the duties of all who use the streets are reciprocal, and the paramount right of the street railway company is subject to the reciprocal rights and duties of others, and no one user of the street has a right to pursue his course without anticipating the possibility of danger to others.”

The court in the instant case instructed the jury in accordance with the principles of law laid down in the Bain and Pankey cases just referred to. Other assignments of error in regard to the giving and refusal of the court to give instructions, and alleged errors in modifying some of the instructions are pressed upon us for the reversal of the judgment. It would unduly extend the length of this opinion to discuss separately and in detail all of these alleged assignments of error. We deem it sufficient to say that we have not overlooked them, but have considered them in a careful manner. Numerous instructions were given by the court at the request of counsel on both sides. Both parties to this law suit were represented by skilled attorneys. The record is voluminous and shows that the case was carefully tried. We think that the instructions given by the court fully presented the theories of both parties to the jury. We think that the refused instructions, so far. as they were applicable to the issues presented by the pleadings, were covered by the instructions given by the court. The jury has said by its verdict that it believed the witnesses for appellee.

We have found no error in the record calling for a reversal of the judgment, and it will be affirmed.