Sylvester v. U-Drive-Em System , 192 Ark. 75 ( 1936 )

The majority opinion indeed takes this court back to "horse and buggy days" in reference to the doctrine of "last clear chance" or "discovered peril."

As I understand the English language, we expressly bold in Arkansas Power Light Co. v. Tolliver, 181 Ark. 790,27 S.W.2d 985, to the contrary of the doctrine now announced by the majority. We there said: "The specific of the instruction urged upon our attention is that the instruction told the jury that, if the motorman could discovered appellee's peril in time to have stopped and avoided the injury to the appellee, had ordinary care with the means at his command, not do so, appellant was liable, and it is argued that the court should have limited the degree of care required of the defendant's motorman to ordinary care in stopping the car after he actually discovered the plaintiff in a perilous position upon the track, and also that there was no testimony to show that the motorman failed to keep the lookout required by the exercise of ordinary care, and that therefore the instruction was abstract in this regard.

"We do not think the instruction inherently wrong or prejudicial."

Demonstratedly this language means what it says: "The motorman could have discovered appellee's peril." This means that the motorman had the duty of keeping a lookout for people in the street and to avoid injury if it could be done by the exercise of ordinary care.

Again in the more recent case of Arkansas Power Light Co. v. Heyligers, 188 Ark. 815, 67 S.W.2d 1021, we expressly held that the giving of the following instruction was not error. "That if * * * the person in charge of said street car discovered the position of said automobile and the perilous condition of the occupants thereof, or could have discovered same by the exercise of due care, that it became the duty of the operator of said street car to use all reasonable means within his power, consistent with the safe operation, of said street car, to avoid the striking of said automobile, and, if he failed to exercise such precaution after he discovered, or could have discovered, such peril, and you should further find by a preponderance of the testimony that the injury to plaintiff, if any, was caused by such failure on the part of the operator of said street car, then your verdict should be for the plaintiff."

The language of the quoted instruction, if it means what it says, certainly committed this court to the doctrine that in all cases where people were using the streets or highways with equal rights each has the duty to keep a lookout for others using such thoroughfare and avoid injuries if reasonably possible. If I am correct in my construction of the language employed by my two associates in the opinion referred to, and this I leave to the judgment of the bench and bar of this State, I submit that the majority is now announcing one rule applicable to drivers of motor vehicles and another rule applicable to street railways, when in fact and under the law there is no difference in duty. On the other hand, if the majority intend to hold that the duties of the motor vehicle operator and motorman on a street car are identical, then the majority opinion breaks down the rule of stare decisis and previous opinions of this court are mere scraps of paper to be used only when the fancy of the court elects.

The majority seem to put much reliance upon Johnson v. Poinsett Lumber Company, 187 Ark. 237,59 S.W.2d 30, as supporting the view that an operator of an automobile has no duty to keep a lookout for other people rightfully using a thoroughfare. Such is not the letter, spirit, nor effect of the opinion in this case. The facts there were that the Poinsett Lumber Company owned and operated a log tramroad, not a common carrier and Mrs. Johnson was walking upon this tramroad without right when injured. No instructions were requested, granted nor refused which presented the issue now decided by the majority; and moreover, the issue is not discussed nor decided in the opinion. All other cases cited and relied upon by the majority are equally without force as will be ascertained from a cursory examination.

The position taken by this court in the Tolliver and Heyligers cases cited, supra, were deliberately assumed and I assert should be respected as their dignity and importance demand. These two cases are in line with all modern decisions on the question made necessary by the advent of a dangerous instrumentality upon the thoroughfares of the world. Dorough v. Ala. G. So. Ry. Co.,221 Ala. 513, 128 So. 602; Wood v. N. Ala. Ry. Co.,22 Ala. App. 513, 117 So. 495; Mobile Light R. Co. v. Fuller,18 Ala. App. 301, 92 So. 89; Handley v. Lombardi,122 Cal. App. 22, 9 P.2d 867; Gundry v. Atchison, T. S. R. Ry. Co., 104 Cal. App. 753, 286 P. 718; Sichterman v. R. M. Hollingshead Co., 94 Cal. App. 486,271 P. 372; Nicolai v. Pacific Electric Ry. Co.,92 Cal. App. 100, 267 P. 758; Collins v. Marsh, 176 Cal. 639,169 P. 389; Sowers v. Indiana Service Corporation,98 Ind. App. 261, 188 N.E. 865; Disher v. Kincaid, 193 Iowa 83,186 N.W. 666; Boerema v. Cook, 256 Mich. 266,239 N.W. 314; Smith v. C. R. I. P. Ry. Co., 228 Mo. App. 600,71 S.W. 842; Johnson v. City of Omaha, 108 Neb. 481,188 N.W. 122; Cleveland Ry. Co. v. Masterson, 126 Ohio St. 42, 183 N.W. 873; S.W. Mo. Ry. Co. v. Duncan,139 Okla. 287, 282 P. 327; Emmons v. So. Pac. Co., 97 Or. 263,191 P. 333; Wichita Coca-Cola Bottling Co. v. Levine, (Tex.) 68 S.W.2d 310; Northern Texas Traction Co. v. Singer, (Tex.) 34 S.W.2d 920; Walker v. East St. Louis S. Ry. Co. (C.C.A. Mo.) 25 F.2d 579; Penn. Ry. Co. v. Swartzel (C.C.A. Ind.) 17 F.2d 869; Kinney v. Chicago Great Western Ry. Co. (C.C.A. Iowa)17 F.2d 708.

The doctrine, now announced by the majority opinion, if adhered to, will permit a careless and drunken driver of an automobile to fall asleep at the wheel and run his car over and upon the lame, sick and irresponsible rightfully upon the State's thoroughfare and claim immunity because of his want of care.

Under the majority view, a complete defense may be now offered and sustained by a drunken or incompetent automobile driver by merely saying, "I shut my eyes and did not see," therefore no liability. My conception of the law is that this is no defense, complete or partial, and for this reason I most respectfully dissent, it from the majority pronouncement.