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SAMS v. PACIFIC INDEMNITY COMPANY

March 4, 1959

RONALD SAMS, A MINOR, BY AND THROUGH WILLIAM L. SAMS AND MARY LEE SAMS, HIS FATHER AND MOTHER AND NEXT FRIENDS, AND WILLIAM L. SAMS AND MARY LEE SAMS, INDIVIDUALLY, PLAINTIFFS,
v.
PACIFIC INDEMNITY COMPANY, DEFENDANT.



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

The plaintiffs, Ronald Sams, a minor, by his next friends, William L. Sams and Mary Lee Sams, and William L. Sams and Mary Lee Sams, individually, as father and mother, respectively, of the minor plaintiff, filed their complaint against defendant in which the minor plaintiff seeks to recover damages for personal injuries sustained by him on December 16, 1957, as the result of the alleged negligent operation of a school bus belonging to the Genoa-Central Consolidated School District and driven by Elmer Ward, an employee of the school district. The plaintiffs, William L. Sams and Mary Lee Sams, as parents of the minor plaintiff, seek to recover medical and hospital expenses incurred by them and for the loss of companionship and the services of the minor plaintiff because of the alleged negligence.

The plaintiffs in their complaint specifically alleged that defendant was guilty of the following acts of negligence:

(1) That the bus was being driven at an excessive rate of speed under the circumstances and conditions existing;

(2) That the bus was being operated in such a manner that the driver did not have complete control of the same;

(3) That the driver failed to use his brakes and other mechanical apparatus under his control to stop, turn or otherwise maneuver the bus or give warning to the children in the school yard, including the minor plaintiff, of the approaching danger;

(4) The driver should have turned his vehicle to the left and avoided striking the minor plaintiff;

(5) The driver failed to keep and maintain a proper and efficient lookout of such a nature and character as would have enabled him to discover the position of the minor plaintiff at a time when he could have stopped and avoided inflicting the injury upon the plaintiff;

(6) That if the driver did maintain such lookout that he discovered the perilous situation of the minor plaintiff in time, he could have avoided striking and running over the minor plaintiff; and

(7) That the driver was negligent in failing to so operate his bus with due regard for the safety of the children at play and as a direct result of each of all acts and omissions separately and concurrently, the driver failed to perform his duty and negligently injured the minor plaintiff.

In an amendment to the complaint the plaintiffs further alleged:

(1) That the driver of the bus drove and operated the same at a time when the bus was not equipped with mirrors or means by which he could see on the right-hand side of the bus;

(2) That the driver was negligent in operating the bus at a time when he could not perform the duty of exercising the proper lookout for children upon and about the premises; and

(3) That the vehicle was defective by reason of not having proper mirrors and a proper view to be operated in close proximity with children of tender age.

The defendant in its answer admitted that the plaintiffs are each citizens of Arkansas and reside in Miller County; that it is a foreign corporation and is authorized to do business in Arkansas and that it issued a policy of insurance to the school district as authorized by the Statutes of Arkansas; that Elmer Ward was employed by the school district as a bus driver and was driving the bus on the 16th day of December, 1957.

The defendant in defense of the claims of plaintiffs alleged:

    "That at the time of the alleged accident
  herein, Elmer Ward, operator and driver of the
  involved school bus, was driving said bus in a
  careful and prudent manner and with due regard
  for the safety of others who might be upon and
  using the school grounds and that the accident
  and resulting injuries to the plaintiff, Ronald
  Sams, happened without any fault or carelessness
  on the part of the bus driver, Elmer Ward, but
  that the sole and proximate cause of said
  accident and resulting injuries to the minor
  child was the negligence of the said minor child,
  Ronald Sams, in that he was running by the side
  of the bus and touching same with one hand as
  same was approaching and entering the school
  grounds of said consolidated school district, all
  of which was to the rear of and beyond the vision
  of the driver of the bus. Therefore, defendant
  pleads said contributory negligence upon the part
  of the minor plaintiff, Ronald Sams, as a
  complete bar to any recovery herein by
  plaintiffs.
    "Further answering, defendant states that the
  said accident and resulting injuries to Ronald
  Sams happened without any fault or carelessness
  on the part of the bus driver but was the result
  of an unavoidable accident over wihch this
  defendant had no control and for which this
  defendant would not be liable."

Ark.Stat.Ann. Sec. 66-517 (1947), provides that where liability insurance is carried by a school district "and any person * * * suffers injury or damage to person or property on account of the negligence or wrongful conduct of any such organization * * *, its servants, agents or employees acting within the scope of their employment or agency, then such person, * * * so injured or damaged shall have a direct cause of action against the insurance company or insurance association with which said liability insurance is carried to the extent of the amount or amounts provided for in said policy of insurance * * * and the ...


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