#### Brown v. McDonald, Administrator.

5-453

271 S. W. 2d 769

Opinion delivered October 4, 1954.

[Rehearing denied November 8, 1954.]

G. Byron Dobbs, for appellant.

Robinson & Edwards and Batchelor & Batchelor, for appellee.

Grip pin Smith, Chief Justice.

The appeal questions correctness of a judgment in favor of Elva McDonald, whose wife was killed on Highway 59 when she was struck by a pickup truck driven by Eula Brown, 23 years of age. The truck belonged to Eula’s father and was carrying a *2number of passengers. All were on their way to Cedar-ville to attend church.

Mrs. McDonald, 38 years of age and the mother of six girls, had been working at a canning factory and was riding home with Ed Rogers and his wife. The McDonald home is a quarter or half mile from the blacktopped highway. Access to the side road used by McDonald is through a gate. There was testimony that it was customary for people who worked at canning factories to aid each other in the matter of transportation. Trucks and cars frequently stopped near the gate mentioned by McDonald, who testified at length. It is argued that because of this custom persons who knew of it were charged with care commensurate with the danger to which those who utilized the intersection area were exposed.

The night Mrs. McDonald was killed her husband had driven to the highway and had parked his truck approximately eighteen feet from the blacktop. Arthur Bunnell had parked his truck near the sideroad and when McDonald arrived he (Bunnell) pulled up beside him. When Rogers came he parked on the east side of the highway, across from McDonald and Bunnell. McDonald testified that his lights were off, but that Bunnell’s parking lights were on and that the Bunnell truck was something like fifteen feet from the highway — “I guess.”

McDonald was positive that Rogers, after letting Mrs. McDonald out of the vehicle, drove away and was 300 feet up the highway when the Brown truck headlights became visible and Mrs. McDonald started to walk across the 21-ft. strip of paving, the center of which is indicated by a painted line.

The testimony regarding the position of Rogers’ truck when the tragedy occurred, and speed of the Brown truck, cannot be harmonized. McDonald estimated that Miss Brown was driving about eighty miles an hour, but his opportunity for measurably accurate observation was necessarily limited. Other estimates ranged from forty to fifty miles. Miss Brown thought that immediately before the impact she was traveling fifty miles an hour, *3but in coming over a road gradé she saw headlights (which proved to be those of the Rogers track) and slowed to forty miles. Her version of essential circumstances is that the Rogers track was palling ap the road — barely moving — and that Mrs. McDonald came from behind it before the vehicle ‘ ‘ had straightened ap. ’ ’ Later she said the track “was jast fixing to start on.”

Respecting the impact and instantaneons observations and acts immediately preceding, Miss Brown testified that she dimmed her lights for the Rogers track, redaced her speed, and was within aboat three steps of Mrs. McDonald when she saw her — ‘ ‘ she ran and was already across the yellow line when I first saw her. It jast looked like she had jamped, and I strnck her.” Althoagh the brakes were applied, the impact occarred before they fanctioned. In farther explanation Miss Brown thoaght Mrs. McDonald had stepped over the center line and had taken one more step; bat, said the witness, the track grill was indented aboat two inches from the center and there was a large dent on the “right hood.”

On cross-examination Miss Brown admitted that if her impression regarding position of the Rogers track was erroneous and if in fact the track (as other witnesses testified) had actaally traveled two handred feet, she coaid have seen the left side of the highway.

Oar conclasion is that there was sabstantial evidence from which the jnry coaid have foand that Miss Brown was negligent. A closer qnestion — bat one that we resolve in favor of the plaintiff — -involves the appellant’s contention that Mrs. McDonald was contribatorily negligent as. a matter of law.

Giving effect to evidence most favorable to the plaintiff (appellee here) the jary coaid have foand that Mrs. McDonald started to walk across the highway when the Rogers track was far enoagh away to remove any visaal hazard; that if, as Miss Brown testified, she redaced her speed to forty miles after observing the headlights, then Mrs. McDonald, as a reasonably prndent person, coaid assume there was ample time to cross before the Brown *4truck reached the point where the unexpected contact occurred. That the truck was moving rapidly is indicated by the fact that Mrs. McDonald was hurled more than fifty feet, including some distance she may have rolled down an embankment. Skidmarks on the blacktop began near where the impact occurred, and damage to the truck hood was on the right side.

Unless physical facts or uncontradicted testimony leave nothing of substance in dispute, contributory negligence is for the jury, or for the judge where a jury has been waived. Here Miss Brown and Elva McDonald are interested parties and what they testified to will not be regarded as undisputed. But even so, there were other witnesses who were not concerned with the result of litigation. In the light of numerous conflicts regarding actions of the litigating principals and Mrs. McDonald, we are not willing to say, as a matter of law, that her action in crossing the highway was conduct of a nature depriving the jury of a right to say whether contributory negligence entered into the transaction.

The care required of one going into a dangerous situation is to be measured with reference to conditions at the time such act occurs, and not after the danger had become too imminent to bé avoided. Louisiana & A. Ry. Co. v. Ratcliffe, 88 Ark. 524, 115 S. W. 396.

The decision in Arkansas-Missouri Power Co. v. Davis, 222 Ark. 686, 262 S. W. 2d 916, is that contributory negligence on the part of the person injured depends upon circumstances of the particular case; and if, from these circumstances, reasonable men might differ as to whether the person did or did not exercise reasonable care, the question must be left to the jury.

So, here, the prudence of Mrs. McDonald’s course of conduct would no doubt evoke opposing opinions. But this is the probability that compels us to say that the trial court did not err in submitting that issue to the jury.

Affirmed.