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JOHNSON v. STEWART

July 3, 1958

JAMES JOHNSON, PLAINTIFF,
v.
FELIX STEWART, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, District Judge.

Statement

This case was tried to the Court on June 30, 1958. At the conclusion of the trial the Court advised the parties and their attorneys that Findings of Fact and Conclusions of Law would be prepared and filed as soon as the business of the Court permitted. The attorneys were requested to furnish the Court such citations of authorities as they desired in support of their respective contentions, and now, having considered the pleadings the testimony of the witnesses, exhibits thereto, and the contentions of the parties, the Court makes and files herein its Findings of Fact and Conclusions of Law, separately stated.

Findings of Fact

1.

The plaintiff, James Johnson, is a citizen and resident of the State of Texas. The defendant, Felix Stewart, was at the time of the commencement of the action a citizen and resident of the State of Alabama. There is involved herein more than $3,000, exclusive of interest and costs.

2.

On November 7, 1957, at approximately 11:00 a.m., the defendant, accompanied by his wife, was driving his 1950 Oldsmobile Sedan in a westerly direction on U.S. Highway 64 near the town of Mulberry, Arkansas. It had been raining that morning, and the rain was falling intermittently when the accident occurred. Immediately prior to the occurrence herein involved, the defendant approached a curve to his left in the highway. He did not have his automobile under reasonable control and was not keeping a proper lookout, and as he entered the curve, which was not banked, the right-front wheel of his automobile left the pavement and dropped into a slight depression at the north edge of the pavement. The defendant immediately steered the car back onto the pavement, but was unable to stop until he had crossed the pavement to his left onto the south shoulder of the highway, where he encountered mud. He then accelerated his car in an effort to bring it back upon the pavement, and in doing so the car came back off of the left or south shoulder and again crossed the pavement to the north, or right, and continued under the accelerated speed into the ditch on the right or north side of the highway until his car struck a telephone pole at the north line of the right of way with force sufficient to break or shear the pole.

At that point the telephone cables crossed the highway from the south to the north side, and when the telephone pole broke or was sheared by the force of the automobile, it fell to the ground, and in so doing pulled the telephone cables that extended from the pole on the south side of the highway to the sheared pole on the north side to a point within a short distance from the ground, and at the place it crossed the pavement the cable was not high enough for the tractor-trailer to pass under. The telephone pole on the south side of the highway was in a southwesterly direction from the sheared pole on the north side, so the telephone cable, when it was pulled down, extended across the highway at an angle of 40 degrees and only a short distance above the surface of the pavement.

Soon after, and before the defendant had gotten out of the automobile, a Diamond T tractor-trailer owned by plaintiff approached from the west going in a generally easterly direction. The approach of the plaintiff's truck was along and upon a straight portion of the highway. The driver of plaintiff's truck was driving at a reasonable rate of speed, not in excess of 35 miles per hour when he approached the curve from the west.

The driver of the tractor-trailer was watching the highway and did not see the automobile of defendant in the ditch where it had sheared the telephone pole. He did not see the cable until he was a very short distance from it, and at that time he set the brakes on the trailer but did not apply the brakes on the tractor, since that probably would have caused the tractor-trailer to jackknife. The tractor-trailer was loaded with tomatoes and weighed approximately 57,000 lbs., and it was impossible for the driver to stop the vehicle before striking the cable. The front wheels of the tractor passed over the cable, but the dollies of the trailer caught on the cable.

The tractor-trailer was traveling in the right-hand or south lane of the pavement, but the weight of the tractor-trailer, aided by the pressure from the telephone cable, caused it to travel to the left or north lane of traffic, where it turned on its left side and came to rest with the wheels on the edge of the pavement and the body in the ditch on the north or left-hand side of the pavement, at a point southeast of the telephone pole that had been sheared by the defendant's automobile.

3.

The extra driver of plaintiff's tractor-trailer was thrown from his sleeping quarters through the windshield of the tractor, and the driver of the tractor-trailer was caught between the steering wheel and the left door of the tractor. After the tractor-trailer had come to rest on its left side and on the north edge of the pavement, the defendant left his automobile and went to the tractor-trailer where he rendered some assistance to the driver of the tractor-trailer and the extra driver who had been sleeping at the time of the accident.

Mr. Edward B. Blackard, a State patrolman, received information of the accident and reached the scene in a very few minutes. When he arrived there, rain was falling but he made an investigation and found that the telephone cable had to be cut from around the dolly ...


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