The statute (6904, Pope's Digest) does confer authority upon the State Highway Commission to make reasonable rules and regulations for traffic on state highways, including the right to fix load limits and to place danger signals, and the above-stated section provides that "Any person . . . who shall violate any of the rules or regulations made and published under the authority herein granted shall be deemed guilty of a misdemeanor," and upon conviction shall be punished by a fine or imprisonment or by both fine and imprisonment.
There was no testimony that the Highway Commission had taken any action in regard to the bridge over Fish Trap Ford, or had authorized the placing of a warning sign on the bridge as to the maximum load limits. It is a mere inference, without any testimony to support it, that because the Highway Commission might have ordered a warning notice placed on the bridge, it had done so.
But this is not a criminal prosecution. It is a suit for damages, predicated upon the theory that it was negligence — and the majority have found negligence per se — for appellee's truck to have been driven over the bridge, inasmuch as the truck, with the trailer, weighed more than four tons. The testimony is sufficient to support the finding that the weight of the truck and trailer exceeded four tons; but this testimony is not undisputed. *Page 186 But even if this testimony were undisputed, a question would yet remain, not only whether appellee was guilty of an act which must be denounced as negligence per se, but also whether he was guilty of negligence at all.
The jury has found — and I think the testimony sufficient to sustain the finding — that appellee was not guilty of negligence. The testimony shows that the state, through its Corporation Commission, had authorized at least two public businesses, the vehicles of which, with their loads, weighed from ten to fifteen tons, to use the bridge in transporting passengers, and that it was so used. Many heavy-hauling truck lines were licensed by the state to operate over this highway, and some of the loads regularly carried over the bridge would weigh ten tons or more, and the Highway Department itself hauled loads weighing as much as ten tons over the bridge. The driver of the truck had driven it across the bridge the day before, loaded, as his truck was when the bridge collapsed, with road-building machinery, and had seen trucks of much greater weight crossing the bridge previously. Must we say this was negligence per se or was it negligence at all? The jury has found that it was not.
Now, appellee could not sue the state, because of its sovereignty; but it appears to me that, in all good conscience, he had a better case against the state than the state had against him. The testimony is undisputed to the effect that the Highway Department was apprised of the condition of the bridge, yet another department of the state, the only one having that authority, had licensed use of the bridge as a part of the state's highway system by vehicles of more than twice the weight of appellee's truck, and these licensed vehicles regularly availed themselves of their licenses.
It was said in the case of State v. Arkansas Brick Mfg. Co., 98 Ark. 125, 135 S.W. 843, 33 L.R.A., N.S., 376, that "The right of the state to be held exempt from the recovery of judgments against it is no clearer than the right of a defendant, in a suit by the state, to avail himself of all and every character of defensive pleas, except limitation. State v. Morgan 52 Ark. 150,12 S.W. 243. He cannot by a cross action have an affirmative *Page 187 judgment against the state for any excess he may be entitled to over and above the state's claim; but this is the extent of his disadvantage from having dealt with the sovereign."
Had this been a privately owned toll bridge, the owner of which had posted a warning against its use by trucks weighing more than four tons, but who permitted its use by trucks of more than twice that weight and collected tolls for that use, we would probably hold — at least this writer would — in a suit between the toll bridge owner and the owner of the truck that the merits of the case were with the truck owner, and not the owner of the toll bridge. The fact that the state which, because of its sovereignty, may not be sued is a party does not affect the legal principles which should be applied.
In any event, it occurs to me that on the question, whether appellee was guilty of negligence in violating a traffic rule, if, indeed, such a rule had been made, which fact was not shown by the testimony, the violated rule was merely evidence of negligence, and not conclusive of that fact. We have many cases to that effect. One of the latest of these, which cites a number of earlier cases to the same effect, is that of Shipp v. Mo. Pac. Trans. Co., 197 Ark. 104, 122 S.W.2d 593, where it was said: "It is the settled rule in this state that violation of a traffic law, whether promulgated by municipal or state authority, may be shown, but the fact that such law has been violated at a time and in circumstances which give rise to a contention that injury has been occasioned thereby is not to be asserted as creating liability as a matter of law. Such violation is evidence of negligence, but is not conclusive of the issue. (Citing cases.)"
In my opinion, the judgment of the court below should be affirmed, and I, therefore, dissent. *Page 188