Bennett v. Staten, 5-1571

• Decision Date: 19 May 1958
• Docket Number: No. 5-1571,5-1571
• Citation: 229 Ark. 47,313 S.W.2d 232
• Parties: Captola BENNETT, Appellant, v. Loren STATEN, Appellee.
• Court: Arkansas Supreme Court

Page 232

313 S.W.2d 232

229 Ark. 47

Captola BENNETT, Appellant, v. Loren STATEN, Appellee.

No. 5-1571.

Supreme Court of Arkansas.

May 19, 1958.

W. B. Howard, Jonesboro, for appellant.

Gerald E. Pearson, Jonesboro, for appellee.

HOLT, Justice.

This action was a damage suit filed by appellee, Loren Staten, for personal injuries sustained when he was struck by an automobile driven by appellent, Captola Bennett, in the city of Jonesboro, July 14, 1956. At the time of the injury Staten was pushing a lawn mower on the east side of South Bridge Street in Jonesboro, in a northerly direction, when he was struck by an automobile coming from the rear, operated by appellant, Bennett. Appellee alleged various acts of negligence on the part of appellant and appellant answered with a general denial, and specifically pleaded various acts of contributory negligence on the part of appellee.

A trial to a jury resulted in a verdict in favor of appellee, and a judgment in amount of $2,750 was entered on the verdict. On appeal here appellant does not question the sufficiency of the evidence to support the verdict. For reversal she relies on the following points: '1. The court erred in failing and refusing to submit to the jury the issue of whether or not the plaintiff was guilty of contributory negligence in pushing his lawn mower in the street with his back to traffic instead of traveling on the sidewalk; as set forth in Defendant's requested Instruction No. 1. 2. The court erred in failing and refusing to submit to the jury the issue of whether or not plaintiff suddenly and negligently stepped in front of defendant's vehicle thereby causing the injuries; as set forth in defendant's requested Instruction No. 2. 3. The court erred in failing to submit to the jury the issue of whether plaintiff kept a proper lookout and whether he was guilty of negligence in this respect; as set forth in defendant's requested Instruction No. 3. 4. The court erred in failing to tell the jury that a mere accident occurring without negligence gives rise to no liability as set forth in defendant's requested Instruction No. 4.'

Appellant's position is stated in this language: 'The evidence was undisputed that the appellee, while pushing a lawn mower, walked in the street instead of on the sidewalk and that he walked on the right side of the street with his back to traffic traveling in the same direction. It was appellant's theory, as set forth in the answer, that these acts constituted negligence on the part of appellee which caused or contributed to cause the injuries complained of. Appellant had a right to have the jury's attention directed to answering whether these acts constituted negligence which caused or contributed to cause appellee's injuries.' Appellant frankly concedes that the court properly instructed the jury on appellee's allegations in his complaint that appellant was negligent in driving at an excessive and dangerous rate of speed; failed to keep a lookout for pedestrians, failed to keep her car under control and failed to give reasonable warning of her approach and to use every reasonable precaution to avoid injuring appellee. While she concedes that these instructions were correct, she insists that since she had specifically defended on the ground that appellee was negligent in walking on the wrong side of the street, and in the street instead of on the public sidewalk, darting in front of appellant's vehicle without warning, and failure to keep a proper lookout and pushing his lawn mower in the street instead of on the sidewalk that she was entitled to have her theory of the case presented to the jury in her Instructions 1 and 2, which the court refused.

These instructions provided: '1. In your consideration of whether the plaintiff Loren Staten was negligent, you may determine whether or not an ordinarily prudent person would have, under the same or similar circumstances; (1) Walked in the Street instead of on the sidewalk. (2) Walked on the right side of the street instead of the left side. (3) Pushed a lawn mower in the street instead of on the sidewalk. If you find that an ordinarily prudent person would not have done these things, then the plaintiff Staten was guilty of negligence, and if you further find that such negligence caused or contributed to cause the injuries complained of you will charge the plaintiff with such negligence. 2. The defendant contends that the plaintiff Staten suddenly and without warning changed his course and stepped in front of her vehicle. If you find that this contention is true and that such action was negligence on the part of the plaintiff which caused or contributed to cause the accident in question, then you will charge the plaintiff with such negligence.'

We hold that these instructions were properly refused because they were in effect comments upon the facts presented and were fully covered by other instructions which fairly announced the law applicable to the facts in this case. A judge is ordinarily not permitted to comment on the facts. The record reflects that the court in general terms set out the theory upon which appellee was relying and also the theory of the defense, relied upon by appellant. He further instructed the jury to determine 'which, if either, of the parties was guilty of negligence which caused, concurred, or contributed to cause the injuries complained of.' He gave the accepted definition of negligence to the jury, and the definition of the meaning of proximate cause and contributory negligence as applied to both parties. The court further properly instructed the jury...