Pine Bluff Co. v. Whitlaw , 147 Ark. 152 ( 1921 )

Hart, J.

(after stating the facts). The negligence of Professor Keith, if any, in driving the automobile, can not be imputed to the plaintiff under the facts disclosed by the record. The car belonged to Professor Keith, and he was driving it. The plaintiff was his guest, and had no voice in directing and governing the movement of the automobile. Hence the parties can not be said to have been engaged in a joint enterprise within the meaning of the law of negligence, and the negligence of the driver, if any, could not be .imputed to the plaintiff. Carter v. Brown, 136 Ark. 23. In that case it was also held that, while the negligence of the driver of an automobile can not be imputed to one riding merely as his guest, it is the duty of the guest to exercise ordinary care for his or her safety, and that a failure to exercise such care which contributes to the injury will constitute contributory negligence.

In the application of this rule to the present case, it is insisted that the plaintiff was guilty of contributory negligence, and the court should have so declared as a matter of law. Counsel for the defendant point to the fact that the testimony plainly shows that the plaintiff could have seen a street car approaching from the east, and that it was the duty of the plaintiff to have notified Professor Keith of the danger from the approaching . street car, and that, not having done so, she is guilty of such contributory negligence as bars her recovery in this case. We can not agree with counsel in this contention. The automobile belonged to Professor Keith, and the plaintiff was riding with him as his guest. She was not assisting, advising, or controlling him in driving the machine, and had no right to do so. Whether she saw the approaching street car, there being nothing to obstruct the view of the track before reaching the crossing, in time to have warned Professor Keith of their danger, was a matter proper to be considered by the jury. She had known Professor Keith for many years and considered him a careful driver. He was accustomed to driving about the streets of Pine Bluff, where he must have of necessity frequently crossed street ear tracks. Occupants' of automobiles are not required to stop when they see a street car approaching, regardless of how far away it may be. It was the duty of the driver of the automobile to use ordinary care in crossing street car tracks in front of an approaching car. * If, under the circumstances, the driver thought he could cross the street car track before the street car reached the crossing, he had a perfect right to do so. The plaintiff is not barred of recovery because the driver of the automobile might have been negligent. It was only the duty of the plaintiff to exercise ordinary care for her own safety. The jury might have believed that the driver of the automobile and the motorman were both negligent, and still have found for the plaintiff, because they believed that she exercised ordinary care for her own safety. The jury had a right to receive such parts of the' evidence as it believed to be true and to reject that which it believed to be untrue.- It might have believed that the plaintiff saw the approaching street car, but thought that Professor Keith also saw it, and believed that he had time to drive over the crossing ahead of it. The jury also might have believed that the attention of the plaintiff was not directed to the approaching street car until it was so close upon them that she had not time to give Professor Keith any warning; of its approach. Indeed, she says that this is what happened, that she did not see the street car until the automobile gave a jerk when Professor Keith increased the speed in order to cross the track ahead*of the street car. Under the circumstances adduced in evidence, there is nothing that required the plaintiff to have kept a constant lookout for approaching street cars, or other vehicles. Professor KJeith was experienced in handling automobiles, and accustomed to driving one on the streets of Pine Bluff. The court submitted to the jury the question of whether the plaintiff exercised ordinary care for her own safety under the circumstances adduced in evidence, and did not err in refusing* to tell the jury as a matter of law that she was guilty of contributory negligence.

Counsel for the defendant also insist that the court erred in giving to the jury instruction No. 2, which reads as follows:

“If you should find from a fair preponderance of the evidence that the motorman in charge of defendant’s car failed to give warning when approaching Pine Street by sounding his gong or otherwise, and in so doing failed to give such warning as an ordinarily prudent person in the exercise of ordinary care under the circumstances would have done, and that his said failure caused or directly contributed to plaintiff’s injury, then it was negligence for which the defendant is liable, unless you further find the plaintiff herself was also negligent, and that such negligence caused or contributed to her injury.”

There was no error in giving this instruction.

In Bona v. Thomas Auto Co., 137 Ark. 217, the court held that where two concurring causes produce an injury which would not have resulted in the absence of either, a party responsible for either cause is liable for the consequent injury. But counsel for the defendant contend that the instruction is erroneous because it tells the jury that defendant was liable in the event of only directly contributing* to the injury. They contend that this may have been accepted by the jury in the sense of aggravating; or that it may have been misleading to the jury because it might have thought that different care or different circumstances might have diminished the shock of the collision, by checking the speed of the street car.

We do not think the instruction is open to the ob- ' jection made. If counsel thought the instruction was open to any such objection, they should have made a specific objection, and doubtless the court would have corrected the verbiage to meet the objection. The court simply meant to submit to.the jury the question of concurring negligence within the rule above announced.

Other instructions are objected to for the same reason. We do not deem it necessary to set out these instructions, because the reasoning just given would apply equally to them.

We find no prejudicial error in the record, and the judgment will be affirmed.