The opinion of the court was delivered by: John E. Miller, District Judge.
On March 10, 1958, this case was tried to the Court without
a jury. Prior to the trial of the case, the plaintiff,
Benjamin James, by permission of the Court was permitted to
take a nonsuit, and the complaint was dismissed as to said
plaintiff. The case proceeded to trial upon the claim of the
plaintiff, Hazel M. James, and at the conclusion of the trial
the Court took the case under advisement pending receipt of
briefs from the parties in support of their contentions.
The briefs of the parties have been received, and the Court,
after considering the pleadings, evidence, and briefs of the
parties, now makes and files herein its Findings of Fact and
Conclusions of Law, separately stated.
The plaintiff, Hazel M. James, is a citizen of Arkansas and
resides in Baxter County, Arkansas. The defendant, South
Central Stages, Inc., is a Missouri corporation, and the
defendant, Harry B. Smith, is a citizen and resident of the
State of Missouri. The matter in controversy, exclusive of
interest and costs, exceeds the sum of $3,000.
At the time of the collision involved in this action the
defendant, South Central Stages, Inc., was engaged in the
business of operating a bus service as a common carrier
between Springfield, Missouri, and Mountain Home, Arkansas,
and intermediate points.
The collision involved in this litigation occurred at
approximately 11:30 a. m. on July 5, 1956, near the village of
Three Brothers in Baxter County, Arkansas. At that time and
place the plaintiff, Hazel M. James, was driving her
automobile in a generally southerly direction on Highway 5.
She was making a trip to the Turnbo Store which is located on
the east side of Highway 5. It was plaintiff's intention to
drive her vehicle slightly past the front of the store and
make a U-turn to the left or east and drive in front of the
store with her automobile heading back in a northerly
The plaintiff was driving on the highway at a speed of 20 to
25 miles per hour. When she was about 100 yards from the store
she looked in her rear-view mirror, and saw no traffic
approaching from the rear. She continued down the highway, and
when she reached a point approximately even with the Turnbo
Store, she drove her automobile to the right onto the west
shoulder of the highway and came to a momentary stop. She then
turned her automobile across the highway toward the east in
proceeding to the Turnbo Store, and when her automobile
reached a point in the west lane of the
highway, said automobile being headed in a west-east direction
facing east, a bus owned by the defendant, South Central
Stages, Inc., and being driven by the defendant, Harry B.
Smith, struck the left side of plaintiff's automobile at a
point directly behind the left door of the automobile (it was
a 2-door automobile).
At the time plaintiff made her turn across the highway she
did not give a signal of her intention to turn, and she did
not see the defendant's bus until immediately before the
The defendant, Harry B. Smith, was driving the bus in a
southerly direction on Highway 5. When he was about 400 yards
north of the store, he noticed plaintiff's automobile which at
that time was about 75 to 100 yards from the store and was
proceeding in a southerly direction. He had been driving at a
speed of approximately 40 to 45 miles per hour, but as he
approached the store he slowed his speed to about 35 miles per
hour to enable him to observe ...