The opinion of the court was delivered by: John E. Miller, District Judge.
Plaintiffs filed their complaint against defendants in the
Circuit Court of Boone County, Arkansas, and on June 23, 1954,
defendants removed the case to this Court.
In due time the defendants each filed separate answers to
plaintiffs' complaint, and upon the issues thus joined the case
was tried to the Court, without a jury, on September 17 and 18,
At the conclusion of the trial the case was taken under
advisement and counsel for the respective parties were directed
to file briefs in support of their contentions. The briefs have
been received, and now the Court, having considered the
pleadings, ore tenus testimony of witnesses, the deposition of
Doctor W.R. Brooksher, exhibits, stipulations and briefs of the
parties, makes and files herein its findings of fact and
conclusions of law, separately stated.
Plaintiffs are each citizens and residents of Boone County,
The defendant, S.P. Sorenson, is a citizen and resident of the
State of Missouri.
The defendant, T.T. Colley, is a citizen and resident of the
State of Tennessee.
The amount in controversy, exclusive of interest and costs,
exceeds the sum of $3,000.
On May 28, 1952, James Sheppard was driving a trailer truck,
owned by the defendant, T.T. Colley, on highway 65 about two
miles north of Harrison, Arkansas. As he was driving up a small
grade about 6:00 a.m. that morning his truck developed motor
trouble and he was forced to stop the truck partly on the east
shoulder of the highway and partly on the paved portion of the
highway. When the truck was stopped Sheppard placed three flares,
one being a pot flare and two being reflector flares, along the
highway to warn motorists of the danger. One of the flares was
placed approximately 100 feet north of the truck, one was placed
100 feet south
of the truck, and one was placed along the left side of the
truck. The flares placed north and south of the truck were each
set about a foot east of the center line of the highway.
Soon after the truck became disabled, Jack Shaddox, a man who
lived nearby, appeared driving his cows across the highway.
Sheppard asked Shaddox if he had anything that could be used to
pull the truck off the highway, and Shaddox said that he had a
tractor which might do the job. Shaddox obtained his tractor and
proceeded to pull the trailer truck up the gradual incline in a
northerly direction, evidently with the intention of pulling the
truck up into a gravel road that branched off the main highway in
an easterly direction. Shaddox succeeded in pulling the truck
about 75 feet along the highway and partly into the gravel road,
but before it was pulled completely into the said gravel road
Shaddox' tractor wheels began to spin in the gravel and he
stopped the tractor.
Sheppard and Shaddox both looked at the truck and concluded
that it was in a reasonably safe position. Then Sheppard moved
the flares, placing them about six inches east of the east edge
of the pavement and 100 feet north and south of the truck. After
making a phone call, presumably for assistance, Sheppard returned
to the truck and went to sleep in the cab.
At that time the truck was located near the top of a small
ridge or hill with the cab of the truck to the north. The grade
of the hill which the truck had been driven and pulled up was
about four per cent, and about 75 feet north of the truck the
highway began a decline of three and one-half per cent north and
down the ridge or hill. The place where the truck was parked was
also in the bend of a five per cent curve, and thus a person
driving north on Highway 65 could not see the position of the
truck until he or she was within 250 or 300 feet.
The tractor or cab of the truck was in the gravel road that
branched off Highway 65 to the east, and the left side of said
tractor or cab was six or eight feet from the east edge of
Highway 65. The left rear wheel of the trailer was against the
east edge of the pavement of Highway 65, and the left rear corner
of the trailer body extended approximately 5 inches over the
On the same morning the plaintiff, Augusta Waycaster, was
proceeding in her husband's automobile, accompanied by her son,
Jimmy, from Yellville to Huntsville, Arkansas, via Highway 65.
She was taking the automobile to her husband, Tom Waycaster, who
had requested her to bring the automobile to Huntsville since he
wanted to trade automobiles.
About 10:00 a.m. she was driving north on Highway 65
approximately two miles north of Harrison, Arkansas, at a speed
of 40 to 45 miles per hour. It had rained earlier that morning,
but by 10:00 a.m. the rain had practically stopped and visibility
was good. As she approached the place where Colley's truck was
parked she was driving up the slight grade and did not see the
truck until she was about 250 feet away. She could not
immediately ascertain the exact position of the truck, and she
began slowing down. Traffic was approaching from the north and
from around the curve. The oncoming traffic was apparently in its
proper lane on the west side of the highway and she was fearful
that she could not safely drive between the oncoming vehicles and
the trailer truck parked on the east shoulder of the highway, so
she slowed down even more in order to allow the oncoming traffic
to pass before she arrived at a point where she would be
compelled to stop behind the truck or pass between the parked
trailer truck and the oncoming traffic.
When Sorenson saw the brake lights of the Waycaster automobile
as Mrs. Waycaster began slowing down, he applied his brakes, but
as above stated was unable to stop before striking the Waycaster
automobile. However, at the time of the impact Sorenson had
slowed his automobile considerably and the impact was not too
severe, although it was of sufficient force to damage both
The events that transpired from the time Mrs. Waycaster first
saw the parked truck and the time of the collision all happened
so quickly that Mrs. Waycaster did not have time to give an arm
signal that she was slowing down, nor did she ascertain or know
that Sorenson's automobile was directly behind the one she was
driving. She merely acted in accordance with her best judgment
under the conditions then existing.
After the impact occurred, the automobiles came to rest within
a few feet of each other. The front end of Sorenson's automobile
was very slightly damaged. In fact, the repair bill for the
damages was only $16. The Waycaster automobile, a 1950 Chevrolet,
was more extensively damaged. The rear bumper was broken, the
left rear of the body was damaged, and the left front part of the
top of the automobile was slightly creased. The estimated cost of
repairing the Waycaster automobile was $68, but instead of having
it repaired Mr. Waycaster traded for another automobile. The
difference in the fair market value of the automobile immediately
before and immediately after the accident was $100. (Mr.
Waycaster testified that he actually received $200 less for his
automobile when he traded than he had been offered before the
accident, but that testimony was based on the trade in value of
the automobile and not on the fair market value.)
When the impact occurred Mrs. Waycaster's head was thrown back
sharply, and her son, Jimmy, was thrown to the floor. The boy was
uninjured, and Mrs. Waycaster did not think she had received any
substantial injury, although she did have a slight pain in her
neck as a result of the sudden jerk of her head. Mrs. Waycaster
and Sorenson got out of their automobiles and talked for several
minutes. They exchanged names and addresses, and Sorenson
examined the automobiles to ascertain whether they could be
driven. Neither of ...