Kelly v. Cessna

Robert H. Dudley, Justice.

John A. Kelly, a pedestrian, was killed when he was struck by an automobile driven by appellee, Raymond Cessna. Appellant, Teresa Kelly, administratrix of her husband’s estate, brought a wrongful death action against Raymond Cessna and his wife Alta, who was a passenger in the car. At the close of appellant’s proof the trial court granted a directed verdict for the appellees. The sole question is whether the appellant made a case for the jury. Jurisdiction of this tort case is in this court. Rule 29(1 )(o).

At 8:50 on the night of October 3, 1980, the appellees were in their automobile driving south on highway 71 near Winslow. They crossed a bridge and entered a left curve. There is a “Reduce Speed” sign in the curve. The curve ends and the road becomes straight .2 mile from a lighted ball park where a football game was in progress. At the entrance to the ball park there is a “45 m.p.h.” sign. The ball field is approximately 200 yards off the highway.

Appellee Raymond Cessna testified that he observed the “Reduce Speed” sign in the curve and reduced his speed by disengaging the automatic speed control. He testified that at a point near the 45 m.p.h. sign he was in the right lane of the two-lane highway and was going approximately 45 m.p.h. when he saw John Kelly in front of him “a half a second” before impact. The left front fender and the left headlight of the car struck Kelly. Appellee testified that his headlights were on bright beam and that he was looking in the path of his headlights as well as to the left of the highway where the ball field lights were shining. The appellee and a truck driver following him testified that he did not see any pedestrians on the highway prior to the accident. A reasonable inference is that Kelly was just to the right of the center of the southbound lane of the highway in line with the left headlight of appellee’s automobile at the moment of impact.

Procedurally, a directed verdict is proper only when the evidence is so insubstantial as to require that a jury verdict for the non-moving party be set aside. On appeal, we determine whether there is substantial evidence by giving the evidence, and all reasonable inferences deducible from that evidence, the highest probative value in favor of the non-moving party. Green v. Gowen and Gowen, 279 Ark. 382, 652 S.W.2d 624(1983).

Substantively, pedestrians as well as motorists are entitled to use the public highways and each must act with regard to the presence of the other. Haralson v. Jones Truck Lines, 223 Ark. 813, 270 S.W.2d 892, 48 A.L.R. 2d 248 (1954). The driver of a motor vehicle must anticipate the presence of pedestrians on streets and highways and use ordinary care to avoid injuring them. AMI Civil 2d, 909. The driver, appellee Raymond Cessna, had a duty to anticipate the presence of a pedestrian on the highway. He had a duty to keep a lookout for pedestrians. The fact that he did not see John Kelly until immediately before the impact is substantial evidence that he was not keeping a proper lookout for pedestrians. Therefore we reverse and remand the directed verdict in favor of appellee Raymond Cessna.

There is no substantial evidence of negligence on the part of the passenger, Alta Cessna. The directed verdict in her favor was proper.

Reversed and remanded as to appellee Raymond Cessna; affirmed as to appellee Alta Cessna.

Hickman, J., dissents.