{ "id": 1485074, "name": "Baker v. Boone", "name_abbreviation": "Baker v. Boone", "decision_date": "1944-02-14", "docket_number": "4-7242", "first_page": "823", "last_page": "828", "citations": [ { "type": "official", "cite": "206 Ark. 823" }, { "type": "parallel", "cite": "177 S.W.2d 756" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "91 S. W. 2d 601", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "192 Ark. 59", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1415094 ], "opinion_index": 0, "case_paths": [ "/ark/192/0059-01" ] }, { "cite": "305 Pa. 277", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1134642 ], "opinion_index": 0, "case_paths": [ "/pa/305/0277-01" ] }, { "cite": "157 Atl. 619", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 } ], "analysis": { "cardinality": 499, "char_count": 7958, "ocr_confidence": 0.475, "pagerank": { "raw": 5.334950738869386e-08, "percentile": 0.33582498439098185 }, "sha256": "e6c03127c67520ab0574e41b628d48ec7e60cc420a57ddedda23b973efef3075", "simhash": "1:69cf43e118fe5ca9", "word_count": 1362 }, "last_updated": "2023-07-14T15:20:24.664732+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Baker v. Boone." ], "opinions": [ { "text": "Gtrieein Smith, Chief Justice.\nD. L. Baker\u2019s truck was being oxieratecl by Richard Benford November 21, 1942, when it collided with an automobile driven by Carl V. Boone, nineteen years of age. Boone\u2019s left arm was shattered, in consequence of which a jury award, of $5,000 was made, with judgment by the Court.\nThe motion for a new trial alleges seventeen errors. Those argued are (a) that defendant\u2019s motion to make the complaint more definite and certain should have been sustained; (b) defendant\u2019s requested instructions Nos. 1 and 10' should have been given; (c) there was no substantial evidence upon which the jury could have found that Benford was negligent'; (d) appellee contributed to his injury; and, (e) the judgment is excessive.\nThe two vehicles came together on Highway 82 in the City of Crossett. Appellee\u2019s testimony is that he was driving westward when the Baker truck came out of a north-south alley. Benford was proceeding at an estimated speed of fifteen or twenty miles an hour\u2014 \u201cpretty fast,\u201d as the witness expressed it. Iiis own speed was between twenty and twenty-five miles an hour. When appellee first observed, the truck it was thirty or forty feet from where the collision occurred. Benford drove across the highway \u2014 about four feet north of the median line. Appellee drove to his right as far as possible, and when struck he was partly on the gravel that joins the blacktop paving.\nPlaintiff\u2019s theory at the trial was that Benford turned left (west) to avoid a hole near where the alley joins the highway, and but for the surface impediment he (Benford) would have gone east on Highway 82 \u2014 the direction intended. In driving around the hole Benford placed himself near the center of the highway necessitating a sharp turn. In so manoeuvering he \u201csicleswiped\u201d the Boone car, with damage to the left front door and physical injury to appellee.\nC. G-. Emerson, as witness for plaintiff, testified that soon after the collision he inspected the scene:\u2014 \u201cThe first dirt showed near the middle of the highway' and extended north some eight or ten feet.\u201d On cross examination Emerson expressed the opinion that contact between the two vehicles occurred in the center of the highway \u2014 that is, at a point on the paving approximately fifteen feet north of the alley opening. .\nBenford testified that he drove to the edge of a five-foot sidewalk intersected by the alley south of the highway, and stopped, having observed the Boone car. At that time Boone was \u201cdown [east] about five [telephone] poles,\u201d proceeding westwardly. At the right of the alley near the sidewalk. there is a culvert \u2014 at the edge of the highway. Benford asserted that he \u201cswung over to the left and came around to keep from going into a hole.\u201d The witness was homeward bound.\nA conclusion to be drawn from Benford\u2019s testimony is that but for the hole he would have made a more abrupt right-hand turn when emerging from the alley. In driving into the street the truck was in second gear. When about ten or twelve feet from the south side of the blacktop Benford saw the Boone car approaching:\u2014 \u201cIt was 'angling\u2019 toward me, and I just cut over to my right. \u2019 \u2019 Boone, he testified, struck the rear of the truck \u201cbed.\u201d\nTurner Brooks, a witness for the plaintiff, testified that he avus in Morgan\u2019s Cafe (standing, apparently, in the doorway) when the collision occurred. Brooks heard the impact and noted position of the two cars. Wheels on the right side of Boone\u2019s car were \u201cwell on the north side of the highway \u2014 on the shoulders off the blacktop.\u201d Rear of the truck \u201cwas something over three feet \u2014 probably four feet \u2014 across the center of the highway, to the north.\u201d- This witness, although he did not see the collision, testified that he was looking, at the truck as it passed going north on the alley, and \u201cAs I saw it [Benford] didn\u2019t stop. He was traveling ten or twelve miles an hour. \u201d\nIt Avill be observed that testimony of the four witnesses varies sharply as to material facts. Benford\u2019s version placed the truck fully three feet south of the highway center, while Boone says he was north of the center and partly off the blacktop. As to Emerson\u2019s testimony, it is possible that force of the impact pushed Boone\u2019s car in the direction the truck was going \u2014 assuming, as Emerson says (corroborated by Boone) that the truck Avas driven directly north from the alley. An inference deducible from Emerson\u2019s testimony is that Benford did not discover his peril until the truck was near the center of the highway, and that he could not, at that time, steer in such manner as to avoid contact. While this may not be true, and Benford may have accurately described the transaction, there was substantial evidence upon which the jury could find Benford negligent. Certainly Benford was at fault if Boone testified truthfully.\nFirst.\u2014 (a) \u2014 The complaint has not been abstracted, nor has that deficiency been supplied by appellee; hence it cannot be said that the Court abused its discretion in overruling the motion to make more definite and certain.\nSecond. \u2014 (b)\u2014Appellant\u2019s contention that refusal \u2018of the Court to give the requested instructions was error must be decided against him because only one of the two requested instructions has been abstracted (No. 10), and there is no abstract of instructions actually given. The ruling complained of, if it were error, may have been cured by a correct instruction.\nThird. \u2014 (c)\u2014Enough of the testimony has been sketched to show that there was a controverted question of fact for submission to the jury.\nFourth. \u2014 (d)\u2014It is insisted that as a matter of law-appellant was negligent in that he was driving with his left arm \u201changing out\u201d of the adjacent window. Boone denied this, although there is testimony that in describing the collision to hospital, attendants he made that explanation. But even though it be conceded that his arm was in the position alleged, this of itself would not be negligence,- that is, it was not negligence per se. The general rule is that before a plaintiff\u2019s action can be defeated, his conduct must have contributed to consequences of the tort in such way that if the plaintiff had not been at fault he would have escaped injury. American Jurisprudence, v. 38, \u201cNegligence,\u201d p. 898, \u00a7 213. Proximate cause almost invariably enters into the transaction, creating a question of fact. An emphatic declaration was made per curiam in Brenton v. Colbert, (1931) 157 Atl. 619, 305 Pa. 277. The case is ver.y similar to the controversy with which we are dealing, one difference being that in the Pennsylvania case the plaintiff was a guest. It was there held that where a backing truck swerved suddenly so that a corner struck a passing motorist\u2019s arm at a time when-the motorist\u2019s arm was resting on an open window of the automobile, the question of contributory negligence was for the jury. See Hobbs-Western Co. v. Carmical, 192 Ark. 59, 91 S. W. 2d 601.\nFifth. \u2014 (e)\u2014The verdict was not excessive. There appears to have been permanent injury. At least substantial evidence is to that effect. The trial occurred four months after the collision. At that time there were open wounds, and shattered bone was exposed.\nAffirmed.\nBenford, a Negro, was Baker\u2019s servant. The plaintiff\u2019s suit was brought in his father\u2019s name, as next friend. [Where, in the opinion, \u201cappellee\u201d is mentioned, the reference is to Carl V. Boone.]\nA thirty-foot vacant lot is between the alley and Morgan\u2019s Cafe, south of the highway. The northwest corner of the Cafe is 47.2 feet south of the sidewalk. The south gravel highway shoulder is 11.6 feet wide, and the sidewalk is 5 feet. Position of the Cafe door is not shown, but the witness must have been more than 150 feet from the center of the highway.", "type": "majority", "author": "Gtrieein Smith, Chief Justice." } ], "attorneys": [ "Y. W. Etheridge, Everard Einshaw and Frankel \u00e9 Frankel, for appellant.", "Ovit T. Switzer and DuVal L. Pitrkins, for appellee." ], "corrections": "", "head_matter": "Baker v. Boone.\n4-7242\n177 S. W. 2d 756\nOpinion delivered February 14, 1944.\nY. W. Etheridge, Everard Einshaw and Frankel \u00e9 Frankel, for appellant.\nOvit T. Switzer and DuVal L. Pitrkins, for appellee." }, "file_name": "0823-01", "first_page_order": 843, "last_page_order": 848 }