Collier v. Citizens Coach Co., 5-1977

• Decision Date: 21 December 1959
• Docket Number: No. 5-1977,5-1977
• Citation: 231 Ark. 489,330 S.W.2d 74
• Parties: Ralph COLLIER, Appellant, v. CITIZENS COACH COMPANY, Appellee.
• Court: Arkansas Supreme Court

Page 74

330 S.W.2d 74

231 Ark. 489

Ralph COLLIER, Appellant, v. CITIZENS COACH COMPANY, Appellee.

No. 5-1977.

Supreme Court of Arkansas.

Dec. 21, 1959.

J. Harrod Berry, N. Little Rock, for appellant.

Rose, Meek, House, Barron & Nash, Little Rock, for appellee.

JOHNSON, Justice.

This case involves an action for personal injuries. Appellant, Ralph Collier, was a paid passenger on a bus owned and operated by appellee, Citizens Coach Company, in the City of Little Rock. Upon boarding the bus, appellant took his seat at an open window and rested his elbow on the window sill. The elbow protruded out of the bus window about 1 1/2 inches. As the bus started off, appellant's elbow collided with a bus stop sign on a light pole on the street corner injuring appellant. Appellant alleged his injuries resulted from negligence of the bus driver. Appellee denied negligence and alleged contributory negligence which was denied by appellant.

On the trial of the case the jury found on interrogatory that the bus driver was not guilty of any negligence proximately causing injury and judgment for appellee was entered thereon, from which comes this appeal.

For reversal, appellant urges five points. We will only discuss point two since it is highly unlikely that the other alleged errors will occur again on retrial.

Point two is as follows:

'The Trial Court prejudicially erred as follows: II. He gave, after jury began deliberation, an instruction defining proximate cause which was erroneous in that (1) it was not accurate; (2) it conflicted with instructions previously given and was confusing and misleading; (3) it was so worded as to excuse defendant bus company from high degree of care imposed by law and previous instructions, while at same time tending to over-emphasize and enlarge upon care required of plaintiff in order to make the bus company's negligence proximate cause, and in effect placed on plaintiff burden of proving himself free of contributory negligence, which vices were magnified by giving this instruction as an isolated instruction.'

The following is verbatim ac literatim from the record:

'After the jury had retired to the jury room for deliberation and had deliberated for some period of time, the foreman of the jury reported to the Court that the jury would like to have the term 'proximate cause' defined. The Court, without the hearing of the jury, asked counsel for the respective parties if it was all right for the Court to so define said term to the jury. After considerable discussion, counsel for the respective parties agreed upon a definition, except counsel for plaintiff objected to it as to form and content, as given, said definition being read to the jury by the Court, as follows:

"Your are instructed that negligence is the proximate cause of an injury only when such injury is the natural and probable result of such negligence and when in the light of attending circumstances the injury ought to have been foreseen by a person of ordinary prudence.' (Emphasis ours.)

'Counsel for plaintiff then specifically objected to the giving of said definition of proximate cause, because it places undue emphasis on what would be expected of a person exercising ordinary care rather than also being adapted to the theory of the high degree of care of a cautious and prudent person being required and that this emphasis was more conspicuous by the fact that it was presented by itself.'

Three of the four interrogatories submitted to the jury required the jury to know the meaning of proximate cause. The fourth interrogatory had reference to the other interrogatories. The jury, after receiving the solitary instruction on 'proximate cause', again retired to the jury room for further deliberation. They returned a verdict for appellee by answering the following interrogatory No. 1 in the negative:

'Do you find from a preponderance of the evidence in the case that the bus driver was guilty of negligence in the operation of the bus and that such negligence, if any, contributed to proximately cause plaintiff's injury.'

The question with which we are confronted is, was the Court's instruction...