Caddo Transfer & Warehouse Co. v. Perry , 174 Ark. 1030 ( 1927 )

Hart, C. J.,

(after stating the facts). The main reliance of the defendant for a reversal of the .judgment is that there is no substantial evidence to show that its agent procured or furnished the car in which the plaintiff was riding at the time he was injured. It claims that its evidence to the effect that the car did not belong to it is not disputed, and that there is no substantial evidence from which the jury was warranted in finding that the man who procured the car was its agent. We cannot agree with the defendant in this contention. The defendant was a corporation, and could only act through its agents. The evidence shows that, under a city ordinance, it was required to load and unload its passengers at a certain station in Smackover, and that it did so. According to the testimony of Nash, he came from El Dorado to Smackover in one of the defendant’s cars and it unloaded its passengers at its station in Smackover. The driver of the bus said that he had unloaded the passengers there because he had to go back to E,1 Dorado, Nash insisted on being carried to Camden, and refused to take back his fare. The driver of the bus then talked with the man at the station of the defendant in Smackover. He was the same man whom Perry had heard calling out the runs of the defendant. This man finally procured a Ford touring car, and sent Nash on in it to Camden. He also took a fare from Perry from Smack-over to Camden, and told him to get in the car. From this evidence the jury might have legally inferred that the man in charge of the station at Smackover, where the defendant loaded and unloaded its passengers, was the agent of the defendant and had the authority, or at least the apparent authority, to arrange to carry Nash and the plaintiff from Smackover to Camden. He was in charge of the defendant’s business, and had at least the apparent authority to act for it in the premises. Hence we are of the opinion that the jury had a right to find that the plaintiff was riding* in a car of the defendant as a passenger at the time he was injured. He had paid his fare to one who was in charge of the defendant’s business at its Smackover station.

On the. question of negligence, the testimony we have recited in our statement of facts warranted the jury in finding that the defendant was negligent in the operation of its car at the time the plaintiff was injured. It had poor headlights, and the jury might have found that the driver was guilty of negligence in driving in the night time too fast down hill while his lights were in such poor condition. Therefore we find that there was substantial evidence to support the verdict.

It is also claimed that the verdict is excessive. We do not agree with the defendant in this contention. The plaintiff’s arm was broken, and he suffered severe pain for several weeks thereafter. While his arm knit together- properly, his attending physician testified that a man of his age was likely to suffer pain during the remainder of his life, in cloudy or bad weather.

It is next insisted that the court erred in allowing the plaintiff to testify that one of the defendant’s cars had “bonded” or “insurance” on it. There was no error in admitting this testimony. It was not admitted for the purpose of showing that the defendant had its cars insured, but it was admitted on cross-examination, while counsel for the defendant was questioning the plaintiff about the description of one of the defendant’s cars. Under these circumstances it was not error to admit the testimony.

Another assignment of error is that the court erred in permitting Nash to testify to certain matters -which are set out in the defendant’s abstract and brief, but which we do not deem necessary to recite, because we find that no objection was made by the defendant to the introduction of this testimony, and, under our settled rules of practice, no assignment of error can be based upon its admission.

Again, the defendant assigns as error the action of the court in giving one of its instructions to the jury at the request of the plaintiff. We do not deem it necessary to set out this instruction, for the objection made to it is that there is no evidence to warrant a submission of the question of whether or not the plaintiff wías a passenger of the defendant on the day he received his injury. As we have already pointed out, the evidence was sufficient to warrant a finding in favor of the plaintiff on this question, and we hold .that this assignment of error is not well taken.

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

Kirby, J., disqualified.