Missouri Pacific Transportation Co. v. George , 198 Ark. 1110 ( 1939 )

George, who will be referred to by name or as plaintiff or appellee, sued Missouri Pacific Transportation Company, hereinafter called appellant, defendant or company, to recover damages for injuries alleged to have been suffered by him at Gurdon in Clark County in the early morning of August 22, 1938.

Upon a trial there was a verdict and judgment for $15,000 from which comes the appeal.

Appellant argues that the trial court erred in three particulars: (1) The court erred in refusing to direct a verdict for the defendant; (2) there was no evidence that the defendant was guilty of negligence; (3) that the verdict is excessive.

In the discussion of the matters that have arisen upon this appeal the appellant company has presented its contentions under the three heads stated, including incidental subjects such as contributory negligence and other matters pertinent to its defensive position. We shall follow this general trend in our discussion, but the first and second of the divisions will be regarded as consolidated because identical.

We shall state some facts about locations and conditions concerning which there seems to be no controversy. The bus was driven into Gurdon shortly after midnight. It had come from Little Rock, was going south 'till it reached Main street in the city when it turned east on the street which is a part of highway No. 53. After proceeding a short distance along main street, it turned north across a sidewalk, on the north side of Main street and stopped or parked ten or twelve feet north of this side walk. It was then headed, just as it was driven in, toward the north. Whether this street where the bus stopped was a blind or closed street north of the bus does not appear from the record as abstracted.

The record does show that this was the usual parking place for the bus on such occasions except that there is a contention that at this time it had gone north a short distance more than usual. We fail to see the importance attached to this contention, but state it merely in an effort at achieving accuracy. While the bus was parked the driver went to the office to make his report; returning after these duties had been performed, he made ready to leave. If George had not witnessed the arrival of the bus he had observed its presence and knew from years of observation that, in a short time, it would back out from the place where it had been parked, turn west to highway 67 to continue its journey to the south. He saw the driver as he went around the bus testing the tires with a hammer and realized this was done preparatory to leaving. The driver of the bus, as he drove to the parking place, or very shortly thereafter, observed George standing on or near the sidewalk, but east of the point of crossing used by him on that occasion. He was still at this same place leaning against a pole "when the driver returned to the bus." It is not clear whether the driver meant to indicate by this statement the time at which he came back from the office or when he had gone around the bus testing the tires. He had just said the bus was 35 or 40 feet long. The materiality of this matter may become important when time to make this inspection is considered. In doing this he went within ten or twelve feet of George where he was standing at the post.

When the bus backed out George was hit or at least fell back away from the bus toward the east. He cried out at the time "What do you mean?" This cry was heard by the driver of the bus and was the first he knew of the alleged accident.

We think the foregoing is a statement of the material, undisputed facts showing the setting, a few minutes, perhaps, a few seconds before alleged accident occurred.

We shall now state the relative contentions of the parties and our conclusions thereon.

George was a deputy sheriff, constable and night watchman. He had been such watchman for a long time. That was the reason he met the night bus. George's statement is to the effect that, as he looked toward the west from where he stood at the pole near the rear of the bus, he saw the freight depot lighted up where men worked every night moving and transferring freight. His attention was attracted to some matters he thought he should investigate. He started west along the regular walk-way when he was struck by the bus backing rapidly from its parking place about 250 feet south of the depot. He says no horn was sounded or other alarm given by the driver. When he had looked before proceeding along the walk to the rear of the bus a moment before, it was still standing. In regard to the noise made by the motor when starting up, he said he did not notice it, and believed it had not been stopped during the parking interval. Wilkerson, the driver, was positive he had stopped the motor before going to the station 250 feet away, and says he was instructed to shut off the motor when it was necessary to stop as long or longer than two minutes, that the motor roared when starting up, because he always raced it momentarily. The driver says he backed out slowly. He did not know that George had moved from the position near or at the pole 'till he heard the cry "what do you mean?" While there is other testimony tending to support or contradict evidence adduced as above set out, we shall content ourselves with these declarations of the two principal actors.

Since we may not determine facts, as will be set out later, the principles of law involved and application thereof may be determined as accurately from the factual statements above as if the whole record or bill of exceptions were dumped into our laps.

May we hold as a matter of law that George was guilty of contributory negligence? It is urged most forcefully that he walked behind this moving bus. Such is not the evidence when considered in the light most favorable to support the verdict of the jury. Before he started to cross he had looked, and the bus was standing. True, he had no right to block the way by standing therein, but the relative and reciprocal duties of pedestrians and vehicles are equal, and each should look out for the other and their conduct in the use of streets under the prevailing conditions determines negligence or the lack of it. Since it may not reasonably be denied that George had a right to be upon the sidewalk under the conditions stated by him, the question of his negligence was properly one to be determined by the jury, and not to be declared dogmatically by us as a matter of law.

Appellants cite an authority defining the duty of a pedestrian standing in a place of safety to remain in such place 'till he shall, by some movement, clearly demonstrate his intention to depart therefrom. Schulze Baking Co. v. Daniel's, Admr., 271 Ky. 717, 112 S.W.2d 1011.

We think the declaration most probably is sound in principle when applied to the particular case, but cannot see how it may be applied here. Appellants say: "The rights of pedestrians and vehicles are reciprocal, and each must anticipate the movements of the other." Learned counsel's statement need not be fortified by citations of authorities.

May not the jury have reasonably determined that George's statement as to how he was injured was substantially true? Wilkerson, the driver of the truck, did not see him. That is the reason for the citation of the above case from the jurisdiction of Kentucky. The presumption invoked was to supply Wilkerson's failure to look or observe just where he was driving when he backed the 35 or 40 foot bus into Main street, over a walkway used by pedestrians.

We do not suggest that the driver should not have backed out or across the walk. He may have been on a blind or closed street, but even if the street were open he might properly have backed using and employing care commensurate with the risk at the time and place. May not the jury have found that according to his own evidence he assumed the way was clear without looking to see, and backed out hurriedly ?

Then there is the question whether he gave any signal? The evidence is in sharp conflict. The jury decided this matter. The law is well settled and recognized. Texas Motor Co. v. Buffington, 134 Ark. 320,203 S.W. 1013.

In the cited case there is a well stated, clearly announced declaration of law by the late Chief Justice McCULLOCH. It not only sets out the duty of the driver backing a car into a street, but, in addition, it is authority for the conclusiveness of the jury's verdict in setting the question therein of plaintiff's contributory negligence. Numerous authorities are cited to support the text. These are all decisions from our own court. For that reason we think it unnecessary, if not pedantic, to resort to decisions of foreign jurisdictions.

In support of the verdict we have already discussed the facts as they could or might have been found by the jury. With some degree of reluctance, we again approach "a vexed and vexing" proposition, the conclusive effect of a verdict.

The late Mr. Justice BUTLER whose scholarly attainments and industry might well be emulated, gathered a list of the well-considered cases and set them forth in the opinion prepared by him for the court deciding Missouri Pac. Trans. Co. v. Sharp, 194 Ark. 405, 105 S.W.2d 579. Just a little later his conclusions were again approved in Missouri Pac. R. R. Co. v. Henderson, 194 Ark. 884,110 S.W.2d 516. I have decided not to copy anything from either of these opinions, lest some one interested in the subject might deem my selected part as the vital portion and for that reason fail to read these opinions in their entirety. It is remarkable with what frequency learned counsel, zealous in their advocacy, present this matter in some new phase, although there has been practical uniformity in all decisions. Indeed, it has come to us from our earliest recorded decisions. Hynson v. Terry, 1 Ark. 83.

It was alleged as error in this last cited case that the trial judge "charged the jury on matters of fact which is expressly forbidden by the constitution." This provision of the constitution of that date is present in our Constitution of 1874, and, under well-recognized principles as announced by a long line of decisions, we must be deemed to have adopted the earlier decisions interpreting that provision of the constitution when we put the same language in the Constitution of 1874.

Avoiding a further superfluity of words which would bring no corresponding benefit, we must content ourselves with the announcement that from that earliest date to the present time this provision of our organic law has remained intact and unimpaired. So now when we are confronted with substantial evidence found to be true by verdict of the jury, the effect of which evidence does not violate or contradict any well known natural law or principle, we may not feel at liberty to disregard such verdict.

In this case, if we were triers of facts we might believe appellee to be a chronic plaintiff seeking by devious ways and methods to extort by "hand-made" processes money from those with whom he came in contact, and although we might feel that the verdict is contrary to the preponderance of the evidence, we are powerless in the face of this constitutional provision as construed throughout the years to enter that field so peculiarly belonging to the jury. If this system is faulty and defective the remedy lies with the people and not with the Supreme Court. It must appear then that argument upon the weight of evidence, upon credibility of witnesses, must be regarded as argument to be made to the jury and finally to the trial court to correct the alleged errors of the jury. The verdict of the jury approved by the trial court forecloses our consideration except to determine whether it may be supported by evidence of substantial nature.

We now dispose of the last proposition argued by appellants upon this appeal. They urge that the verdict is excessive, and was rendered as a result of passion and prejudice. We think it might well be conceded that no passion and prejudice are shown unless same appear from the amount of the recovery. It is argued that the testimony of the physician who describes the alleged injuries should not be believed; that it is corruptly false, demonstrated by X-ray pictures which were charged to have been made by trick photography. Forceful argument, vigorous denunciation and pointed invective are very strongly persuasive that this may be true. We are told by appellants that the plaintiff has suffered no real injury: that the evidence indicating the almost total impairment of certain bodily functions which impairment will remain as permanent lesions was knowingly untrue. This charge is far reaching in its implications. If it was so apparent that the correctness of appellant's charge is true in this regard, the trial judge must have been as well informed of its correctness as appellants and their learned counsel. The evidence that this condition prevailed must rest solely, at this time, in the zeal and advocacy of counsel who present the issue. Again we are forced to assert that these arguments are appropriate to have presented the matters in controversy to the jury and trial judge.

We evade no responsibility in this respect; it does not reach us. If the appellee's testimony and that of witnesses, including the doctor, were believed, the verdict is supported by evidence of a substantial nature. That being true, necessarily the charge of passion and prejudice must be deemed as eliminated. This is a hard case; the kind that makes shipwreck of the law. Affirmed.

GRIFFIN SMITH, C.J.; McHANEY and HOLT, JJ., dissent. Mr. Justice FRANK G. SMITH concurs in the result.