ARK.] SYLVESTER V. U-DRIvE-Em Sysmm. 75 SYLVESTER V. U-DRIVE-EM SYSTEM. 4-4097 - Opinion delivered January 27, 1936. 1. AUTOMOBILE—INSTRUCTION AS TO DISCOVERED PERIL.—An instruction authorizing recovery for death of plaintiff's intestate notwithstanding his contributory negligence if the defendant's driver by proper care "could have discovered the presence of deceased" and have avoided killing him was properly modified by striking out the words "could have." 2. NEGLIGENCE—DISCOVERED PERIL.—The doctrine of discovered peril means that when one person sees another in a place of danger or peril he must exercise ordinary care to avoid injuring him, and he is liable if he fails to do so, regardless of the others contributory negligence. 3. AUTOMOBILES—DISCOVERED P ERIL— PRESUMPTION.—Where plaintiff sought to recover for the death of a pedestrian struck by a taxi on the theory of discovered peril, an instruction that the pedestrian is presumed to have exercised due care was properly refused. 4. AUTOMOBILES—DEATH OF PEDE STRIAN — INTOXIGATION.—In an action for the death of a pedestrian testimony that deceased appeared to be under the influence of whiskey when he started across the street, held admissible as tending to show his condition. 5. APPEAL AND ERROR—INVITED ER ROR. — Testimony that the driver of the taxi which struck deceased told witness that he did not see the deceased until he was "right 'on him," if error, was invited where plaintiff questioned the same witness on direct examination about the driver's statements. Appeal from Jefferson Circuit Court; T. G. Parham; Judge ; affirmed. Action by Mrs. Ben Sylvester, administratrix, against U-Drive-Em System. From an adverse judgment plaintiff appeals. E. W. Brockman and R. W. Wilson, for appellant. Reinberger & Reinberger and Donhcum, & Fulk, for appellee. MCHANEY, J. Appellant's intestate, Charlie Sylves-ter, was fatally injured by being struck by a car owned by appellee and operated by its employee on the night of February 11, 1934, on Main Street, between Third and Fourth Avenues, in the city of Pine Bluff, and died a short time thereafter. This action was instituted by appellant as administratrix of his estate to recover dam-
76 SYLVESTER V. 11-DRIVE-EM SYSTEM. [192 ages for his injuries and death. As stated by appellant : "The cause was heard before a jury and submitted solely upon the doctrine of the last clear chance. From a verdict for appellee comes this appeal." Appellant's first contention for a reversal of the judgment relates to instruction No. 8, requested by her, as follows "You ake instructed that, even though you might find from a preponderance of the evidence on the whole case that Charlie Sylvester was negligent, yet, if you further find from a preponderance of the evidence on the whole case, that the driver, Ralph Wardlaw, by properly driving the taxi and keeping a proper and• constant lookout for persons in the course of his travel, could have discovered the presence of the deceased, Char-lie Sylvester, in the street, and by the use of ordinary care and diligence under the circumstances could have avoided striking him, and he failed to do so, your verdict should be for. the plaintiff and against the def endant. " • The court modified this instruction by striking out the words "could have" immediately preceding the word "discovered," and gave the instruction as thus modified, over appellant's objection and exception to the modification, and this assignment appears to us to be the basis of her principal contention for a reversal. We think no error was committed in this respect. As stated above, in the language of counsel for appellant, this case was "submitted solely upon the doctrine of the last clear chance." There is no question in this case of negligence on the part of the driver and con-tribntory negligence on the part of deceased. There is some evidence in the record that the driver of the taxi was negligent in driving at an excessive rate of speed, and the evidence is overwhelming that the deceased, while intoxicated, at a late hour of the night, walked or staggered out into the street in the middle of the block, hidden from the driver's view by . a parked automobile at the curb, and directly in front of the taxi. But the contributory negligence of the deceased was a bar to the action and appellant did not submit the case on
ARK.] SYLVESTER V. U-DRIVE-EM S VSTEM. 77: that theory, but on the theory of "discovered peril" or "last clear chance." "Discovered peril" means peril that Is actually discovered and not peril that might have been discovered. As we. said in Missouri Pacific Railroad Co. v. Skipper, 174 Ark.- 1083, 298 S. W. 849 : fad, the doctrine of discovered peril means that,.-when one person sees .another in a place of danger or peril, he must exercise ordinary care to .avoid injuring him, and, if he. fails to do that, he.is liable." And, again in St. Louis S. C o., v. Simpson, 184 Ark. 633, 43 S. W. (2d)• 251, we•said : " The discovered peril doctrine, or, the doctrine of last clear, chance, as it is sometimes . called, con-. stitutes an exception to the rule.that the contributory neg-. ligence of the plaintiff is a bar to his adtion. . Under this doctrine, where one . discovers the perilous situation of another in time, by the exercise of ordinary care, to -pre-• vent injury to .him, it is his duty to do so, which iS regarded in. law as the proximate ca.use of the injury; and this, too,. regardless, of the contributory negligence , of the injured person. : Such a person is regarded in law as having the last clear chance to prevent injury or death to another, .and it iS his dnty to do so." See also Johnson . -tr .- Poinsett Lumber & Mfg. CO.,
187 Ark. 237, 59 S, W. (2d) : 30 . ; Ark. Power & Light Co.. v. Dillinger, 188 . Ark. 401, 66 S. W. (2d) 291.. hi the•
former . case it was• 'held, to . quote a- headnote : "In an
action by a pedestrian struck by a motor-car while walking on .a railroad.track, ail instruction that the discov-. ered peril began; if .at all, when it became apparent to the party operating the Motor-car that the plaintiff 'was not only upon the- track between the . rails but that she . woUld remain there' 'held not error." Appellant relies. on the case of Ark.. Power & Light Co. v. Heyligersi 188 Ark. 815, 67 S. W. (2d) 1021. But the instruction there under consideration, •and • which was held not to be erroneous, did not. assume, nor was it conditioned upon., the contributory negligence of the plaintiff. After quot-
ing from § 398, \ T OL 1; of White's Personal Injuries on Railroads, that the rule "may now be stated 'to be well-. establiShed that the injured person,. or his representative, may recover • damages • for an injury resulting- from, the.
78 SYLVESTER V; U-DRIVE-EM SYSTEM . . [192 negligence of the defendant, although the negligence of the injured person exposed him to the danger of the injury sustained, if the injury was more immediately caused by . the want of care on the defendant's part to avoid the injury, after discovering the peril of the injured person." The court then said: "It would appear to be a sufficient answer to appellant's argument upon this subject to'say that, if the failure to use care to avoid injuring the person whose negligence had placed him in a perilous position -Was the proximate cause of the dnjury, when proper .care, after discovery of the peril, would have averted the injury, suCh failure to use proper care would likewise be the proximate cause of the injury td a person in peril without fault or negligence on his part, and we conclude therefore that there was no error in the instruction." Likewise in the case of Ark. PO wer & Light Co. v. Tolliver, 181 Ark. 790, 27 S. W. (2d) . 985, instruction No. 1A for appellee was criticized by appellant as being incorrect under the discovered peril rule. The instruction was not copied in the opinion, but an examination of the record discloses that it does not assume the contributory negligence of the appellee, but the case was tried on the theory that she was in the , exercise of due care for her own safety, and the court instructed the jury, that if she _were guilty. of contributory negligence, she. could not recover, even though its motorman was also. negligent as alleged. So it . will be seen that these cases were not tried on the "discovered peril" . doctrine, but upon the rule of negligence and contributory negligence. Moreover, appellant asked and the court gave her instruction No; 11 as fallows : "You ate instructed that, although you may find that the deceased was crossing the street at a point other than . an intersection, and although you further find that the deceased was under the influenCe of some intoxicant, and to the extent that. he• was unable to appreciate the danger .to which he .was subjecting himself by walking in the street, and the defendant's driver saw and realized his conditiOn, it then became his duty to exercise ordinary care under the.circumstances to prevent striking . : and injuring the de-,
AnK.] SYLVESTER v. U-DRIVE-EM SYSTEM. 79 ceased; and, if you find that he failed to exercise such care, andthat such failure was the proximate cause of the injury, then your verdict should be for the plaintiff." • This was a correct declaration because it required the driver to see and to realize the Condition of appellant's intestate,—not ;that he could have seen and could have realized his Condition in a place of danger: In other words, the discovered peril began, if at:all,' just , as in Johnson v. Poinsett Lumber &*11114. Co.; supra. , when it became apparent tO . the driver that said intestate was in a place of danger. It then became his dutV to exer: cise ordinary care to prevent injury to him, and, if!le failed to do so, he was negligent. Numerous, other cases might be cited in suppOrt of the rule re-aiinounced, many of which • maY be found cited in the cases mentiOned. It follows from what we Said that the court did not :err in modifying said instruetion in the manner stated. It is' next 'said that the court erred in refusing to give appellant's instruction No. 4, to the effect. that the deceased was.presumed to be in the eXercise of due care for his own safety at the , time of , the injury, and that the burden is upon appellee to show the-contrary,, unles.s it sufficiently appears from appellant's testimony. No error was committed in refusing this instructiOn, for the reason that, since the, case was tried upon the doctrine of "discovered peril" solely, the question as to whether 'he was in .. the exercise of due 'care for hiS•OWn safety is .immaterial„ as,' regardless of his 'contributory negligence; if the driver of the taxi -achially 'saW him in . time to avoid striking and injuring him bY• the 'Cker-cise of ordinary care, and failed to do So, aPpellant'was entitled to recover under the , instructions given.' ' Appellant also assigns as error and argue's that the court erred in giving certain inStructions for' appellée over appellant'S; objections. We have eXamined . these assignments' and*find them without merit. It. wOuld. unduly extend this opinion io set them out and discuss them in detail. . We have carefully examined all of the instrUctiOns given and refused and find that the cOurt fully and fairly instruCted the-jury on the' whole 'caSe
80 SYLVESTER V. U-DRIVE7EM SYSTEM. [192 It is finally insisted that the court erred in the admission of certain testimony. The- court permitted one witness to testify that the deceased appeared to be under the influence of whiskey because she saw him stagger, and another witness to , testify that he talked to the driver of the taxi shortly after the accident, and the driver said: "He didn't see him until he stepped out in front of him between two cars and he was right on him before ha seen him," meaning the deceased. As to the former witness, who thought the deceased was intoxicated because he- staggered, we think the testimony Was competent as tending to show the condition deceased was in at the time he left the restaurant where the witness. waS a waitress ; and as to 'the latter, the testimony as ta what the driver said, if error, was invited by appellant who asked the same witness on direct examination as to statements made by the driver. - We find no error, and the judgment is accordingly affirmed. JOHNSON, C. J., and HUMPHREYS, J., dissent. JOHNSON, C. J., (dissenting).. The majority opinion indeed takes this court back to "horse and buggy. days" in reference to the doctrine of "last clear chance" Cr "discovered peril." As I understand the English language, we expressly. held in Arkansas Power & Light Co. v. Tolliver,181 Ark. 790, 27 S. W. (2d) 985, to the contrary of the doctrine now announced by the majority. We there said: "The specific vice of the instruction urged upon our attention is that the instruction told the jury . that, if the motorman could have discovered appellee's peril in time to have stopped his car and avoided the injury to the . appellee, had he used ordinary care with the means at his command; and did not . do so, appellant was liable, and it is argued that the court should have limited the degree of care required of the defendant's motorman to ordinary care in stopping the car after he actually discovered the plaintiff in a perilous position upon the track, and also that there was no testimony to show that the motorman failed to keep the lookout required by the exercise of
ARK.] SYLVESTER V. "3-D1UVE-E1\1 SYSTEM. 81 ordinary care, and tha.t therefore the inStruction was abstract in this regard. "We do not think the instruction inherently wrong or prejudicial." • Demonstratedly this language means what it.. says : "The Motorman could have discovered appellee's peril." This means that the motorman had the duty of keeping a lookout for people in the street and to avoid injury:if it could be done by the exercise of ordinary care. Again in the rnOre recent case of Arkansas, Poteer & Light Co. v. Heyligers,.1.88 Ark. 815, 67 S. W. • (2d) 1021, we expressly held that the giving' of the following instruction was not error. "That. if *,the 'person in charge of said street car discovered the position of said automobile and the perilous condition of the . .occupants thereof,- or could have discovered same•bY the . exercise . of due care, that it became the duty of the operator of said street cat to use all reasonable means within his poWer, consistent with the safe operation of said streercar, to avoid the. Striking of said automobile, and, if he failed' to exercise such precaution after he discovered, or-could have discovered, such peril, and you Shmild further .find by a preponderance of the testimony that the injury .to plaintiff, if any, was caused by such failure on the 'part of the operator Of said street car, then y6ur verdict .should be for the plaintiff." • . The language of the quoted instruction,: if it •means what it says, certainly committed this 'Court. to 'the doctrine that in all cases where people were using the streets or highways with equal rights each has the duty tO keep a lookout for others using such thOroughfare .and .avoid injuries if reasonably possible. If I •ain correct in my construction of the' language employed my tWO asSociates in the opinion referred to, and this I'leave 'to the judgMent of the bench 'and , bar of this . State,-I subMit that the majority is now announcing one rule .applicable to drivers of motor vehicles and another rule aPplicable to street railways, when in fact and under the law there is no difference in duty:. On the other hand; if the majority intend •to hold that the duties of the Motor .vehicle
82 • SYLVESTER V. U-DRIVE-EM SYSTEM. [192 operator and motorman on a street car are identical, then the majofity opinion breaks down . the rule of stare decisis and previous opinions of this court are mere scraps of paper to be used only when the fancy of 'the.'court elects. The majority seem to put much reliance upon J ohn-Son v. PoinSett Lumber Company,187 Ark. 237; 59 S. W. • (2d) 30, as supporting the view that an operator' of an automobile has no 'duty to keep 'a lookout for Other j3eople rightfully using a •thoroughfare. Such is not the: letter, spirit, nor effect of the opinion in this case. The facts there were that the Poinsett Lumber Company owned and operated log tramroad,. not a common carrier— and Mrs. Johnson was walking upon this tramroad without.right when.injured. No instructions were reqUested, granted. nor refused which presented the issue now decided by the majority ;. and moreover, the issue is not dis-'cussed nor decided.in -the opinion. All other cases cited , and relied upon by the majority aro equally without force as will be . ascertained from a cursory examination.., The Position taken by this . coUrt in the Tolliver and 'Heyliger cases cited, suPra,.. y iere. deliberately assumed and'I assert ghould be respeCted as' their dignity . andim-portance demand. TheSe two cases are in line with all modern decisions. on-the question Made necessary' by the advent of a dangerous instruinentality upon the 'thoroughfares of the world. DOroUghiv: . G. So.. RY.: Co., 221 . Ala. '513, 128 So...602; Wood Y. N. Ala. Ry. Co., 22 . Ala. App; 513, 117 So.' 495. ; Mobile Eight & R: Co.. y ..Fuller,.18 Ala. App. 301,- 92 So. 89; Handley v. Lombardi, 122 Cal..App. 22,. 9 Pac. (2d) 867 . ; Gundry v. Atchison, & S. R. Ry. 'Co; 104 Cal. App. 753,. 286 Pac. 718; Sichter-man :v. R.. M. Hollingshead Co.., 94 .. Cal. App. 486; 271 Pac. 372; Nicolai* v..Pacific Electric!Ry. Co.,: 92 Cal. App. . 100,267 Pdc: 758 ; Collins v. Marsh, 176 Cal. 639, 169 Pac. 389 ; Sowers . - v. -I?n,diana .Service . :Corpo'ration, 98 ho. .App. 261, 188, N. E..865 ;. Dishor . v. Kincaid; 193 IOwa 83, 186 N. W. 666 ; Boerema v. Cook, 25.6 Mich. 266, 23 .9' N . W. .314; Smith v. C. R. I. & P. Ry: Co., 228 .Mo. App. 600,.71 . S. W. 842; Johnson v. City of Omaha,. 108 Neb. 481., 188 .N. W. 122; Cleveland Ry. :Co. v. Mast.erson, 126. Ohio ,St.
ARK'. 42, 183 N. W. 873; S. W. Mo. Ry. Co: v: • D gneavn, 13 , 9 Olda. 287, 282 Pac. 327; Emmons v: So.-Pac. Co., 97 ore: 263, 191 Pac. 333; Wichita , Coca-Cola Bottling .Co.. v.,49vine, (Tex.) 68 S. W. (241) . 310.;:Northern Texas . Tr.action,Co..; v...Singer, (Tex.) 34 S. W. (2d), 920 ;, Walker v. East St. Louis S. y. Co. (C,.Q. A. Mo.) .25.F. (2).579 :; Penn., By. Co. v. Swartzel (C. C.. A., Ind.) .17 1..(3.) . 869;„ neg v., Chicago . (keat'. Western By. Co.. (C.. C. A. jowa) 17 Fed. (2d) 708. The. doctrine now annoUnced by the. majority . opinion, if adhered fo, Will...permit a . careleSs and drunken, driyer 'of an' autoniobile tO fall asleeP at the ,w1leel and run his , c • ar oyer andupon the , lame, sick . .and irrespon'sible „ rig „ htfullY up . on • th • e 8tate' • s.thOrong . h . fare 'and claiin 'im- munity becatisc . of .his want of caie. • . . • . .Under the majority„yiew, a- complete.,defense 7may be pow :offered and • snsfained..by a- drunken or,inconve., tent automobile driver; by merely saying; .'j..shust.-my, eyes .. and did , not see,",therefore:noliability. My conception of the. lawds,tha , t this . is,no defense, complete or. par: tial, and .for this reasOn most xespectfully diss'ent,from the majbrity pronouncement. ;,
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.