Ozark Natural Gas Co. v. Moore, 201 Ark. 283, 144 S.W.2d 35 (1940)

Nov. 4, 1940 · Arkansas Supreme Court · 4-6074
201 Ark. 283, 144 S.W.2d 35

Ozark Natural Gas Company v. Moore.

4-6074

144 S. W. 2d 35

Opinion delivered November 4, 1940.

*284 Jeta Taylor and Daily & Woods, for appellants.

J. Bun Perrymore, Jonah E. Yates, Partain & Agee and Geo. W. Johnson, for appellees.

Gripein Smith, C. J.

The appeal is by Fred Wilson and Ozark Natural Gas Company from judgments aggregating $20,000, as shown in the footnote.1 Action of Wilson in stopping a truck in such manner as to obstruct the view of the driver of an automobile in which Williams’ intestate and others were passengers is gravamen of the complaint. It is alleged that Wilson was a servant of Ozark Natural Gas Company.

Fleeman Norman, driving his 1929 model “A” coupe, collided with a Ford V-8 driven by an unidentified party. Gertrude Williams received injuries from which she died several weeks later.

Norman had been transporting workers to fields near Lavaca. Just before the collision ten persons were in and on the car — four in the rumble seat, one on each running board, and three with the driver in the front seat.

Highway 22 2 from Fort Smith to Charleston is intersected by highway 96.3 At the area of intersection general direction of highway 22 is northwest and southeast.4 Beginning at a point in the center of highway 22 and proceeding south 135 feet, highway 96 is there shown by a plat to be 29% feet wide, and on the right *285in a conspicuous place is an official highway “stop” sign. North from this sign the gravel road gradually widens until at the south margin of highway 22 there is, as Norman expressed it, sufficient space for six or seven cars abreast. This “flare” construction is to facilitate traffic. The-plan extends to each side of highway 22.

Norman, traveling north on highway 96 with his nine passengers, stopped when eight to twelve feet south of highway 22, where three got out and others shifted positions. While the coupe was thus stopped near the center of highway 96, Wilson drove up in his truck, to which was attached a trailer loaded with 5-inch well casing. Just where Wilson stopped is not definitely shown, hut from plaintiffs’ witnesses (statements of whom are shown in the fifth footnote)5 there is no contention that the truck' wheels were more than a few inches on the concrete — although the term “inches” is not-used. Indeed, the inference to he drawn from all declarations is that the tires were away from, or at most only touching, the south side of the paving.

Relieved of the three passengers, Norman says he looked up and down highway 22 the best he could,- then started across the paving in low gear, making perhaps fifteen miles an hour. The truck had not moved when he started, and it was ten feet to his right. It was impossible to see over the iron pipe on the trailer, nor could he see around the truck or over the cab. Although the view, generally, was thus obstructed except for a distance of about twenty feet on Wilson’s side, Norman says he could see between the pipe and the cab 100 to 110 yards east to the top of a hill. In the glance he *286cast in that direction no car was visible. After having-cleared the median line of highway 22 and almost reaching safety to the north, a Ford V-8 from the east traveling 35 or 40 miles an hour struck Norman’s car near the rear. At that time he had gone north 26 to 30 feet from starting point. From the time he saw the V-8 until it struck his car, Norman covered less than two feet. Instead of trying to slow down, or stop, he “stepped on the accelerator” and “almost made it.”

In the meantime Wilson’s truck had turned to the right on highway 22. When the wreck occurred Wilson stopped and gave assistance, then hurriedly drove to Charleston to direct an ambulance for relief of the injured.

From testimony given by the plaintiffs it appears that Wilson’s only connection with the collision was his conduct in observing directions of the traffic sign. Section 6717, par. (b) of Pope’s Digest is: “The driver of a vehicle may overtake and, allowing sufficient clearance, pass another vehicle proceeding in the same direction either upon the left or upon the right on a roadway with unobstructed pavement of sufficient width for four or more lines of moving traffic when such movement can be made in safety.”

In the case at bar there must have been sufficient clearance for Wilson to pass to Norman’s right, for Norman testified there was a ten-foot space between them. The gravel surfacing of highway 96- was wide enough for four or more lines of moving traffic. This will be conclusively presumed from Norman’s statement that there was room for six or seven cars. Hence, § 6717 par. (b) was not violated.

Section 6722, par. (a) of Pope’s Digest directs that “the driver of a vehicle intending to turn at an intersection shall do so as follows: Both the approach for a right turn and a right turn shall be made as close as practical to the right-hand cu,rb or edge of the roadway. ’ ’

Norman was near the center of highway 96, and Wilson approached highway 22 (where he intended to turn) *287by keeping “to tbe rigbt-band curb or edge of tbe roadway.” Wilson did not violate tbis provision.

In respect of Norman’s conduct, § 6730, par. (b) of Pope’s Digest is cited. It provides:

“Tbe driver of a vehicle shall likewise stop in obedience to a stop sign as required herein at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway and shall proceed cautiously, yielding to vehicles not so obliged to stop which are ivithm the intersection or approaching so closely as to constitute cm immediate hazard, 'but may then proceed. ’ ’6

There was no stop sign on highway 22. The Ford V-8, therefore, had the right-of-way. Yet, with a clear vision of only 20 feet to the east, Norman, without protest from any of the appellants whose duty it was to warn him if his actions were negligent, indifferently drove into a place of peril. Some of the questions asked Norman on cross-examination, and his answers, are shown in the seventh footnote.7

There is not, in the entire record, a scintilla of evidence — not a fact, a circumstance, or an inference — upon which to predicate negligence by Wilson. Even the vacuous substance of “such stuff as dreams are made on” is utterly lacking.

*288It follows that the judgment must he reversed, and the cause dismissed.