The majority holds: (1) that venue was in Logan county, and (2) that a directed verdict should have been given for the defendant. *Page 317
I. Venue. I agree with the majority on the question of venue: although, in sustaining the venue in Logan county, I think we are weakening, if not impliedly overruling, the case of Norton v. Purkins, 203 Ark. 586, 157 S.W.2d 765.
The majority opinion did not give the facts regarding the venue question in the case at bar. Here are the facts: Miss Valeta Stewart became 18 years of age on March 7, 1944, and was killed in Fort Smith, Arkansas, on April 22, 1944. Her parents lived in Booneville, in Logan county; and she lived in the home with them until April 19, 1943, when she began working as a waitress at a cafe in Fort Smith, in Sebastian county. Miss Stewart and other girls had an apartment in Fort Smith, and paid the rent monthly. She kept her clothes in Fort Smith. She worked six days a week in the cafe, and went to Booneville on her rest day "nearly every week," and took her soiled clothes to Booneville where she and her mother laundered them. During three weeks in early 1944 the cafe was closed for repairs; and Miss Stewart spent this time with her parents in Booneville. There is no record of any voting or payment of taxes.
The question was whether, under the venue statute (Act 314 of 1939), Miss Stewart "resided at the time of injury" in Logan county. A comparison of the above facts with those detailed in Norton v. Purkins leads me to the conclusion that no sound distinction can be drawn between the two cases. But I think that Norton v. Purkins took too narrow a view of residence, and the present holding goes more to the correct conclusion, which is that residence may be domicile as well as the place of temporary sojourn. So I agree with the majority on the venue question.
II. Instructed Verdict. My dissent in this case is on this issue of the instructed verdict. Appellee's instruction No. 1 was abstract — insofar as the bus being about to stop was concerned — and the judgment should be reversed; but the cause should be remanded instead of dismissed. I think there was evidence that would carry the case *Page 318 to the jury on correct instructions on the question of whether the illegal position of the bus was the negligence that proximately caused the injury. The majority opinion recites "position of the bus was merely evidence of negligence — a circumstance for the jury's consideration, something upon which a verdict may be predicated if in the light of all the surroundings it can be said that the defendant was negligent, and that such negligence occasioned the damage complained of." Who is to consider whether the position of the bus was the proximate cause of the collision? The majority, in the above quotation, has said that the position of the bus was a circumstance for the jury's consideration; and yet the majority holds that there was not sufficient evidence to take the case to the jury!
There was introduced in evidence an ordinance of the city of Fort Smith requiring vehicles to be parked close to the curb. The ordinance provided that a vehicle (such as the appellant's bus) should be "parallel with the edge of the roadway, headed in the direction of traffic, and with the curb-side wheels of the vehicle within twelve inches of the edge of the roadway." It is undisputed that the bus in question was in a position in violation of that ordinance. One witness testified that the rear end of the bus was "around four to five feet from the curb and the front was about two feet from the curb." Further, it was testified by the witness, Edgin, that he was over to the center of the street as far as he could go. He said:
"I got as close to the middle as I could."
Hoffman testified that there was not sufficient space between Edgin's car and the protruding end of the bus for Hoffman's car to pass the bus. The majority opinion refers to the photographs in the record. I have examined these carefully; and they do not disclose where the bus was struck. They do show — to my satisfaction — that the right front part of the Hoffman car received the greatest force of the impact; and that circumstance lends support to Hoffman's testimony. *Page 319
I have recited some of the facts, in order to show that the question of who was at fault could only be determined by the drawing of inferences, and the reaching of a conclusion from these facts and others, detailing all of which would considerably lengthen this opinion. The question is: was the collision proximately caused by the illegal parking of the bus, or by the reckless driving of Hoffman? If, by the illegal parking of the bus, then there is liability; if, by the reckless driving of Hoffman, then there is no liability. To answer the question is to determine a factual issue; and the jury should decide it. The crux of the whole matter is this: Who should draw inferences and reach conclusions? I unhesitatingly answer: "the jury"; and I quote from my dissenting opinion in the case of Union Central Life Insurance Co. v. Sims, 208 Ark. 1069, 189 S.W.2d 193:
"Who should draw these inferences and reach these conclusions? The jury. Our cases all hold to that effect. In Grand Lodge of A. O. U. W. v. Banister, 80 Ark. 190,96 S.W. 742, 744, Mr. Justice McCULLOCH said: `if the facts are such that men of reasonable intelligence may honestly draw therefrom different conclusions on the question in dispute, then they are properly submitted to the jury for determination. Judges should not, under that state of the case, substitute their judgment for that of the jury.' In St. Louis Ry. Co. v. Coleman, 97 Ark. 438,135 S.W. 338, 339, Ch. J. McCULLOCH said: `When the testimony, though unconflicting, is such that different minds may reasonably draw different conclusions therefrom, then it is the duty of the trial court to submit the issues to the jury for determination, and on appeal the verdict of the jury should not be disturbed.' In St. Louis, I. M. S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S.W. 786,788, Mr. Justice HART said: `The rule is that where fairminded men might honestly differ as to the conclusion to be drawn from the facts, whether controverted or uncontroverted, the question at issue should go to the jury.' See, also, Mississippi River Fuel Corporation v. Senn,184 Ark. 554, 43 S.W.2d 255, and many other cases collected in 16 West's Ark. Dig., Trial, 142 and see also 64 C.J. *Page 320 346. . . . I think the majority opinion invades the province of the jury, so I respectfully dissent from the dismissal of the case. There were errors in the instructions which would necessitate a reversal, but the cause should be remanded for a new trial."