Butler v. Cabe

Kirby, J., (after stating the facts). (1) Appellant contends that the court erred in giving said instruction No. 4, and we agree with this contention. All persons have equal right to use the public streets and highways for purposes of travel by proper means with due regard to the corresponding rights of others, and it is unquestioned that an automobile is a proper means of conveyance on the public highway, neither can it be disputed that driving a mule to a buggy is a like proper means of conveyance. Certainly a citizen is not to be deprived of his right to use any means of conveyance within his control because, forsooth, the animal he must drive is unaccustomed to the sight of automobiles and becomes frightened upon meeting or coming near them. Public highways are established for the benefit of all who find it necessary ' or desirable to travel thereon, adopting any means of conveyance not prohibited by law. In Millsaps v. Brogdon, 97 Ark. 469, the court said: “The beggar on his crutches has the same right to the use of the streets of the city as has the rich man in his automobile. Each is bound to the exercise of ordinary care for his own safety and the prevention of injury to others in the use thereof.” In Minor v. Mapes, 102 Ark. 354, the court said: “ Auitomobilists and the drivers of other vehicles have the right to share the street with pedestrians, hut they must anticipate the presence of the latter and exercise reasonable care to avoid injuring them. Care must be exercised commensurate with the danger reasonably to be anticipated.” (2-3) All travelers upon the public highways are bound to the exercise of ordinary care in the use thereof, both for their own protection and the safety of others, and ordinary care as indicated in the quotation from. Minor v. Mapes may require greater care exercised on the part of the automobilist and others driving vehicles of high power and great speed that make fearsome noises calculated to frighten unsophisticated country horses and mules not city broke and accustomed to seeing them, than that required of other users of the highway. In some jurisdictions automobilists are prohibited the use of certain streets and highways and our own statutes restrict their operation as to the rate of speed that may be maintained. Said instruction allowed the jury to find against .the plaintiff who was unquestionably seriously injured by the frightening of his mule and the overturning of his buggy, if the jury found 'that he knew the animal driven by him was afraid of an automobile and might become frightened and unmanageable upon meeting one upon ia public highway, if his conduct in driving the animal upon a public highway where he would probably meet automobiles was not that of .a reasonable and prudent man under the circumstances, taking away from the jury altogether the right to find for the plaintiff notwithstanding any negligence on his part, if it can be held that the driving of .an animal upon a public highway where an automobile might be met, not accustomed to .the sight thereof was negligence, if the defendant, after discovering his perilous position, failed to exercise ordinary care to prevent the injury. Our courts have invariably held railway companies responsible for damages caused by the frightening of animals ridden or driven along public highways near their tracks and at crossings for failing to use the proper care to prevent injury by them after it becomes apparent that injury may result from the fright. This instruction in effect told the jury that the plaintiff was not entitled to recover for an injury caused by his mule becoming frightened at the approach ¡of an automobile and running away and injuring him if he knew that the animal was liable to become frightened upon meeting an automobile, and a prudent person would not have driven an animal of that kind upon the public highway .where automobiles might be met. This is not the law. Plaintiff had the right to drive 'his mule on the public highway, being bound,, of course, to the exercise of ordinary care while doing so, and there was no reason to think that he could or would not have time upon the approach of an automobile to take such measures as would protect himself from danger on account of the fright of the animal by either leaving the road, if opportunity offered, or by getting out of the buggy and holding the animal until the danger was past. The court erred in giving this instruction and the judgment must be reversed and the cause remanded for a new trial. It is so ordered.