Bona v. Thomas Auto Co.

WOOD, J., (after stating the facts). Although traveling by automobiles is comparatively new, yet, the same general principles are applicable to them as to other vehicles upon the public highway. The driver of such vehicles must use that degree of care and caution which a person of ordinary prudence would exercise under similar circumstances. As was stated by us in the recent case of Garter v. Brown, 136 Ark. 23: “The degree of care which the drivers of automobiles are bound to exercies is commensurate with the dangers to be anticipated and th the injuries that are likely to result from the use of vehicles of that character. The more dangerous the character of the vehicle, of course, the greater the degree of care required in its operation.” See also Minor v. Mapes, 102 Ark. 351-54. Our statute provides, among other things: “No person shall drive a motor vehicle or motor bicycle upon any public highway in this State at a speed greater than is reasonable and proper, having regard to the traffic and the use of the way, or so as to endanger the life or limb or injure the property of any person. * * * If the rate of speed of a motor vehicle or motor bicycle operated on any public highway in this State, in going around a corner or curve in a highway where the operator’s view of the road traffic is obstructed, exceed six miles an hour, such rate of speed shall be prima facie evidence that the person operating such motor vehicle or motor bicycle is running at a rate of speed greater than is reasonable, having regard to the traffic and the use of the way, or so as to endanger the life or limb or injure the property of any person.” Act 134, Acts of 1911. In Bain v. Fort Smith Light & Traction Co., 116 Ark. 126, we held, that if a street car which caused an injury was being operated at the time in a manner that violated an ordinance of the city such fact might be shown as tending to establish the allegations of negligence.” See also Pankey v. Little Rock R. R. & Elec. Co., 117 Ark. 337; Ward v. Fort Smith Light & Traction Co., 123 Ark. 548; Carter v. Brown, supra. But aside from any statutory provisions, “it is the duty of an automobile driver when approaching a turn in the highway, or other place where extra precaution may be required to insure reasonable safety, to reduce his speed and take such care as the danger of the situation demands.” Berry on Automobiles, sec. 138, p. 160. See also Fairchild v. Fleming, 125 Minn. 431. In speaking of the care required in the operation of an automobile at a street corner it is said in Buscher v. N. Y. Transportation Co., 106 App. Div. (N. Y.), 493-495: “Due care in its operation requires in such circumstances that the vehicle should be slowed down and operated with caution.” The true test in all cases is whether or not the driver has used such care and caution as a careful and prudent person would have done under the same circumstances, and a driver of automobile's is not exempt from negligence by simply showing that at the time of the accident he was not running at a rate of speed greater than that allowed by law. For ordinary care under the circumstances of the particular case might require that he be operating his machine at even a lower rate of speed than the limit fixed by law. To enable him to avoid a collision with another person ordinary care might require that he should have his machine under 'such control that he not only could slow up but also stop. Huddy on Automobiles, sec. 271, p. 292; Thies v. Thomas, 77 N. Y. Supp. 276; 2 R. C. L. 1184, sec. 19, note; 4 Ann. Cas. 400, note “Automobiles”; 108 A. S. R. 214, note; Cumberland Tel. & Tel. Co. v. Yersir, 141 Ky. 16-19-20. Applying these principles to the facts set forth in the statement the issue of negligence raised by the pleadings was clearly one for the jury. But the appellees contend that “there was no proof tending to show that the speed of the automobile, regardless of what its rate might have been, was the cause of, or, in any way contributed to, the injury.” Their counsel urge that the undisputed evidence shows that the proximate cause of the injury was the defective condition of the steering gear, of which the driver had no knowledge, which caused the car to lock and thus produce the injury. This contention cannot be sustained for the reason that it ignores entirely the testimony adduced on behalf of the appellant tending to prove that the car turned the corner at a high rate of speed, and from which the jury might have found that the proximate cause of the injury was the negligent failure on the part of the driver of the car to lessen his speed on approaching and in turning the corner so as to have enabled him to stop before it struck the child notwithstanding the defect in the steering gear. There was no testimony to the effect that the brakes were not working properly and there was testimony to warrant a finding that if the car had been running at a low rate of speed it could have been stopped before it hit the steps where the child was standing. True there was testimony on behalf of the appellee tending to show that the proximate cause of the injury was a defect in the steering gear which caused the same to lock and which defect was not discovered by the driver until it was too late in the exercise of ordinary care by the use of the brakes to stop the car and prevent the injury- The theory of the appellees, as above stated, was that the defective steering gear was the independent, sole, and proximate cause of the injury and not the speed of the car. And there was testimony to sustain this theory. The theory of the appellant was that the ear was being driven at a negligent rate of speed, which alone was the proximate cause of the injury, and that this rate of speed caused the locking of the steering gear, if same was locked. But if mistaken in this, and the steering gear could be considered also as an independent cause, that the negligent rate of speed at least concurred proximately with the defective steering gear in causing the injury. There was testimony to sustain these theories of the appellant. The theories of the respective parties were in conflict and it was a question for the the jury, under proper instructions, to determine which theory was correct. “It is a well settled general rule,” says this court in Pittsburg Reduction Co. v. Horton, 87 Ark. 576-579, “that if, subsequent to the original negligent act a new cause has intervened, of itself sufficient to stand as the cause of the injury, the original negligence is too remote. See also Ark. Valley Trust Co. v. McIlroy, 97 Ark. 160. Others to the same effect are, American Bridge Co. v. Seeds, 144 Fed. 605; City of Peoria v. Adams, 72 Ill. App. 662; Terminal R. R. Assn. v. Larkins, 112 Ill. App. 366. It is equally well settled by the decisions of our own and other courts that “where two concurring causes produce an injury which would not have resulted in the absence of either, the party responsible for either cause is liable for the consequent injury.” 3rd Syllabus, St. L. S. W. R. R. v. Mackey, 95 Ark. 297, and cases there cited. Helena Gas Co. v. Rogers, 104 Ark. 59, and other cases cited in appellant’s brief. The complaint does not charge that appellees were negligent in causing the operation of an automobile which had a defective steering gear, and, therefore, under the pleadings this must be treated as if it were an independent act of some third party. It would unduly prolong this opinion to discuss the rulings of the court upon the appellant’s prayers for instructions. What we have already said will be sufficient to guide the court in declaring the law applicable to the facts if they remain the same as disclosed by this record. We find no errors in the rulings of the court in admitting the testimony as to the test made, in front of appellee’s place of business, of the steering gear of the automobile which caused the injury. The steering gear was in the same condition at the time of this test as it was at the time of the accident. R. R. v. Michael, 115 Ark. 101; St. L., I. M. & S. Ry. Co. v. Kimbrell, 117 Ark. 457. No objection was offered to the testimony as to any other test. For the error in granting appellee’s prayer for instruction number one the judgment is reversed and the cause is remanded for new trial.