{ "id": 1734222, "name": "Pitts v. Greene, Adm'r", "name_abbreviation": "Pitts v. Greene", "decision_date": "1964-10-05", "docket_number": "5-3311", "first_page": "438", "last_page": "446", "citations": [ { "type": "official", "cite": "238 Ark. 438" }, { "type": "parallel", "cite": "382 S.W.2d 904" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "238 Ark. 222", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1734278 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/238/0222-01" ] }, { "cite": "237 Ark. 486", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1737894 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/237/0486-01" ] }, { "cite": "233 Ark. 281", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1691693 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ark/233/0281-01" ] }, { "cite": "46 S. W. 2d 796", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "185 Ark. 263", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1435327 ], "opinion_index": 0, "case_paths": [ "/ark/185/0263-01" ] }, { "cite": "202 Ark. 1097", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449963 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/202/1097-01" ] }, { "cite": "225 Ark. 309", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1642626 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/225/0309-01" ] }, { "cite": "115 S. W. 2d 868", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "195 Ark. 1040", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726042 ], "opinion_index": 0, "case_paths": [ "/ark/195/1040-01" ] }, { "cite": "156 S. W. 171", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "107 Ark. 476", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1344033 ], "opinion_index": 0, "case_paths": [ "/ark/107/0476-01" ] } ], "analysis": { "cardinality": 762, "char_count": 14597, "ocr_confidence": 0.484, "pagerank": { "raw": 1.508626200565567e-07, "percentile": 0.6669807776437932 }, "sha256": "b7c262efbb5ddd556a0c502a6c5f9ee0b4a509f0de6bdf13a11dbb95ad8c7487", "simhash": "1:ab0da64ac83ae100", "word_count": 2578 }, "last_updated": "2023-07-14T18:48:57.788571+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Pitts v. Greene, Adm'r." ], "opinions": [ { "text": "Paul Ward, Associate Justice.\nSusan Ann Russell, at the age of seventeen years, was fatally injured while riding in an automobile which was struck by a large trailer truck. The truck was owned by the Pitts Trucking Company (hereafter called \u201cPitts\u201d) and it was being driven by appellant Henry Gibson. The car in which Susan was riding was being driven by her high school classmate, Fifi Greene. It is not denied that Miss Greene was entering a street intersection in El Dorado with the green light when the truck ran the red light and struck her car.\nSuit was filed against Pitts and Gibson by Chester L. Greene, as Administrator of the Estate of Susan Ann Russell, deceased. Although other issues are involved on appeal, the prime contention of appellants at the trial was and here is that the collision ivas caused by the failure of the truck\u2019s brakes to function and that the collision was a result of an unavoidable accident.\nAt the conclusion of a trial the jury returned a verdict in the amount of $2,179.28 for the use and benefit of the Estate of Susan, $25,000 in favor of Susan\u2019s mother, and $15,000 in favor of her father. Judgment was rendered accordingly, and this appeal follows.\nFor - a reversal appellants rely on seven separate points which we will discuss under the following headings : One, appellants \u2019 request for instructed verdicts; Two, alleged error in giving certain instructions; Three, alleged error in refusing to give a requested instruction; and Four, excessive judgments in favor of Mr. and Mrs. Bussell.\nOne, appellants contend the court should have instructed a verdict in favor of each of them, it being conceded apparently that any negligenc\u00e9 shown on the part of Gibson would be attributed to Pitts. Simply stated, the issue is whether the record contains any substantial evidence to support a finding of negligence on the part of Gibson. Appellants strongly contend the record contains no such evidence. We are unable to agree with appellants.\nSeveral witnesses who saw the accident testified as to how it happened. We think it will suffice to summarize this testimony since there is slight dispute as to the material facts. The collision occurred at the intersection of West Hillsboro Street and South Washington Street \u2014the former running east and west and the latter north and south. Just west of said intersection and at each intersection there was a red-green traffic signal. For convenience we may hereafter refer to where South West Avenue intersects Hillsboro Street as the \u201cfirst intersection\u201d and to the intersection where the collision occurred as the \u201csecond intersection\u201d. The truck consisted of a tractor or cab and a 37-foot trailer. It was loaded with 25,000 pounds of steel at the time, and the overall weight of the truck and the load was a little over 54,000 pounds. Gibson stated he had been driving cross-country since 6:30 that morning, and the collision occurred at about 3:30 o\u2019clock p.m. West Hillsboro Street slopes 5 feet from the first intersection to the second intersection and then it begins to rise as it goes over a viaduct 37 feet high.\nThe testimony of Appellant Gibson was in material respects substantially as follows: I am 36 years old; I had been driving for Pitts 7 years and had driven this truck 4 months when the accident occurred; previous to the accident I had used the brakes several times that day and had had no trouble; the first stop I made in El Dorado was at the first intersection \u2014 there were two cars in front of me and when the light turned green I started east along West Hillsboro Street \u2014 I was driving 20 to 25 miles per hour; when I was about 200 feet west of the second intersection I saw the light turn red at the second intersection \u2014 I didn\u2019t attempt to put on my brakes until 1 had run about 50 feet and then when 1 did try to apply the brakes I found they didn\u2019t work; I first tried the service brake and then the emergency brake and after that I tried to put the truck in low gear \u2014 just as 1 tried to put the truck in low gear the cab of the truck was entering the intersection and collided with the automobile in which Susan was riding; if I had put the truck in low gear when I was 200 feet from the second intersection it would not have stopped the truck but it could have slowed it down and likely have missed the car; the truck picked up speed because of the down slope without applying any power; when I tried to put the truck in low gear it was already entering the second intersection.\nThis Court has held that any material facts may be established by circumstantial evidence. St. Louis, I.M. & S. Ry. v. Hempfling, 107 Ark. 476, 156 S. W. 171. In the case of Adams v. Browning, 195 Ark. 1040, 115 S. W. 2d 868, this Court reversed the action of the trial court in directing a verdict for the defendant,\"saying:\n\u201cUnder our system of jurisprudence, it is the province of the jury to pass upon the facts. It is not only their privilege but their right to judge of the sufficiency of the evidence. The credibility of the witnesses, the weight of their testimony, and its tendency, are matters peculiarly within the province of the jury. If there is any substantial evidence it is the duty of the court to submit the matter to the jury.\u201d\nWhen applying the factual situation in this case to the law as set out in the above case, we are unable and unwilling to say there is no substantial evidence of negligence on the part of Gibson to support the finding of the jury. The jury had a right to believe all or any part of his testimony, and the jury might have' concluded that appellant was driving at too great a speed compatible with the slope of the street and the weight of the truck and its contents; at one time Gibson seems to say that as soon as he learned that the brakes would not work he tried to put the truck in low gear while at another time he seems to say he tried to apply the service brake and the emergency brake before attempting to put the truck in low gear. Gibson also testified that just as he attempted to put the truck in low gear it had already entered the second intersection; but at another time it would appear that ho was 150 feet away from the intersection when he tried to shift to low gear. Such apparent discrepancies of course could have been considered by the jury.\nThere is another ground under which Pitts might have been held liable aside from any negligence on the part of Gibson. See Brand v. Rorke, 225 Ark. 309, 280 S. W. 2d 906. The facts in that case were somewhat similar in principle to the facts of the case under consideration. Appellant, Brand, was injured while riding in a car driven by appellee, Rorke. In appellant\u2019s complaint against Rorke it was alleged that the latter was driving an automobile without brakes which was the cause of her injuries. At the trial appellant testified that appellee was driving down a mountain highway when the brakes failed, etc. The trial court directed a verdict in favor of appellee. In reversing the trial court we made this statement:\n\u201cIt is insisted by the appellee that this proof falls short of establishing negligence, since the mechanical defect might have arisen suddenly and without fault on Rorke\u2019s part. Even so it was not necessary for the plaintiff to anticipate and disprove this possible explanation. By statute every motor vehicle must be equipped with adequate brakes. Ark. Stats. 1947, \u00a7 75-724. It has often been held that proof of the violation of such a. safety measure is evidence of negligence. [Oases cited.] The appellant\u2019s testimony constituted substantial evidence to the effect that the statute had been violated; it was for the jury to say whether the defendant was guilty of negligence.\u201d\nTioo, appellants objected to several instructions given to the jury. It would\u2019 serve no useful purpose to set out all these instructions and comment on each one of them. However, we have carefully examined each and find no reversible error. We deem it sufficient therefore to comment only on the principal objections raised.\nInstruction No. 12 reads as follows:\n\u201cYou are instructed that it is the duty of every person operating a motor vehicle upon a public street or highway to keep a lookout for other vehicles which \u2022may be upon the streets or highways, and to have his or her vehicle under such control as will enable him or her to check its speed or to stop if necessary in order to avoid injury or damage, where danger is reasonably to be anticipated or is apparent.\u201d\nAppellants\u2019 objection to the above instruction is that it imposes an absolute duty on the driver to keep a lookout and to have his vehicle under control, etc. while the law requires only reasonable care. We cannot agree that the instruction, as given, constitutes reversible error when it is considered in connection -with previous statements of this Court and with other instructions given by the court in this case. In Livingston v. Baker, 202 Ark. 1097, 155 S. W. 2d 340, we said:\n\u2018 \u2018 Criticism of this instruction is particularly directed to the language, \u2018When the driver of a motor vehicle sees danger ahead, or it is reasonably apparent if he is keeping a proper lookout, or if he is warned of approaching imminent danger,\u2019 then it is his duty to bring his vehicle under control and to stop it if necessary to avoid the danger. We see no objection to this language when applied to the undisputed facts in this case or to the facts which the jury found by its verdict to be true, even though disputed.\u201d\nThe above comment is indeed applicable to the facts here. Unquestionably Gibson was warned of \u201capproaching imminent danger\u201d when he saw the signal light at the second intersection turn red.\nIn the case of Northwestern Casualty & Surety Co. v. Rose, 185 Ark. 263, 46 S. W. 2d 796, where the issue was similar to the one here raised, we said:\n\u201cIt is the well-settled rule that the duty rests upon the driver of an automobile to exercise ordinary care in its operation, and in the exercise of such care it is his duty to keep a constant lookout to avoid injury to others. This is particularly incumbent upon him when driving on the street of a city in order to avoid injury to pedestrians, as he should anticipate their presence upon such streets and their equal right to their use.\u201d\nProm the above it is apparent that at least two duties rest upon the driver: one is the duty to exercise reasonable (or ordinary) care in operating a vehicle while the other is the duty to keep a proper lookout for the safety of others. Instruction No. 12 covered the latter duty only. Other instructions of the court- correctly defined negligence and ordinary care as applied to Gibson in operating a vehicle on a street or highway.\nThe trial court gave Instruction No. 22 which deals with the question of damages for mental anguish. Appellants objected on the ground that \u201cit ignored this court\u2019s rule that damages for mental anguish can only be awarded for such anguish over and above normal mental anguish\u201d. Granting that appellants\u2019 objection is sustained by Peugh v. Oliger, Admx., 233 Ark. 281, 345 S. W. 2d 610, we do not agree that the suggested defect in the given instruction calls for a reversal. We think it was cured by other instructions given to the jury. Instruction No. 21 given by the court told the jury that in order to recover damages for mental anguish it \u201cmust be more than the normal grief over the loss of a loved one\u201d. In addition, the court, in Instruction No. 1, told the jury it must consider all instructions as a whole.\nThree, appellants here contend that the court erred in failing to give Instruction No. 17 requested by them, and set out in appellants\u2019 argument as follows:\n\u201cYou are instructed that a motorist, in a sudden emergency, and who is required to act quickly and acts according to his best judgment, or who, because of want of time in which to forpi a judgment, omits to act in the most judicious manner, is not chargeable with negligence, provided he exercised, in the emergency, care of a reasonably prudent individual under like circumstances.\u201d\nWe find no error. First, because the court had already given Instruction No. 15A which we find correctly covered the same subject matter. Also, it appears that the instruction copied above omits a portion of the requested instruction which was refused by the court. The omitted portion appears to us to be argumentative and therefore objectionable. Anyway it was not necessary for the court to give both instructions.\nFour, finally, it is urged that the judgments based on mental anguish are excessive. As stated, the jury gave Susan\u2019s mother $25,000 and her father $15,000. Appellants now ask us to reduce these judgments, but we are not persuaded to do so. In approaching this question we are 'reminded of what we said in the case of J. Paul Smith Co. v. Tipton, 237 Ark. 486, 374 S. W. 2d 176:\n\u201c. . . there has not been and never will be devised a definite and satisfactory rule by which to determine the amount of money required to compensate parents for mental anguish.\u201d\nWe have recently been called on to consider the same question in the cases of Tiner v. Tiner, 238 Ark. 222, 379 S. W. 2d 425, and Peugh v. Oliger, supra, in which size-able amounts were approved for mental anguish. In none of these cases ivas there shown more evidence of mental anguish than is shown here, particularly as applied to Mrs. Russell. Susan is pictured by several witnesses as a lovely girl, active in school and church affairs, and attached to her parents. Susan\u2019s mother said she went to pieces and had to go to work since she couldn\u2019t stay at home, that she was unable to work and had to leave town several times \u2014 but nothing helped. The nurse drew a touching picture of how Mrs. Russell acted when she visited the hospital, indicating excessive grief \u2014 this was continuous while the nurse was there. The extent to which Susan\u2019s death affected the father is indicated by the showing he was visibly upset while testifying \u2014 his face was contorted and it was hard for him to make audible answers. At times he covered his face with his hands.\nIt was within the province of the jury to fix the pecuniary remuneration to compensate the parents for their grief because of the death of Susan. We are not able to point to any satisfactory reason why we could or should, under the facts in this ease, reduce the amounts fixed by the jury.\nAffirmed.", "type": "majority", "author": "Paul Ward, Associate Justice." } ], "attorneys": [ "Mahony \u00a3 Yocum, for appellant.", "Brown, Compton \u00a3 Prewett, for appellee." ], "corrections": "", "head_matter": "Pitts v. Greene, Adm'r.\n5-3311\n382 S. W. 2d 904\nOpinion delivered October 5, 1964.\n[Rehearing denied November 9, 1964.]\nMahony \u00a3 Yocum, for appellant.\nBrown, Compton \u00a3 Prewett, for appellee." }, "file_name": "0438-01", "first_page_order": 462, "last_page_order": 470 }