Davis v. Self

• Decision Date: 25 February 1952
• Docket Number: No. 4-9692,4-9692
• Citation: Davis v. Self, 220 Ark. 129, 246 S.W.2d 426 (Ark. 1952)
• Parties: DAVIS et al. v. SELF.
• Court: Arkansas Supreme Court

Page 426

246 S.W.2d 426

220 Ark. 129

DAVIS et al. v. SELF.

No. 4-9692.

Supreme Court of Arkansas.

Feb. 25, 1952.

Mann & McCulloch, Forrest City, for appellants.

E. J. Butler, Forrest City, for appellee.

WARD, Justice.

This case involves damages resulting from a collision of appellee's truck with a taxicab belonging to appellant Davis. Self was driving his truck east on Cleveland Street [in Forrest City] and had entered the intersection with Grant Street [before the taxicab entered the intersection]. The taxicab, driven by appellant Shidler, was proceeding north on Grant Street [which was a through traffic street] when it struck appellee's truck as it was crossing or was across the center line.

This suit was consolidated with a suit brought by Mrs. Self who was in the truck with appellee and was injured. The defendants, appellants, answered denying any negligence and in turn asked for damages against appellee. The jury verdict was in favor of Self, appellee.

Appellants urge several grounds for a reversal or modification but we find it necessary to consider only one ground, and that is the alleged error of the trial judge in giving appellee's instruction No. 1 which is as follows: 'You are instructed that if you find that the truck driven by the plaintiff, James O. Self, was in the intersection of Grant and Cleveland Streets of the City of Forrest City, Arkansas, and that the said James O. Self was then and there exercising due care and caution, even though said James O. Self had failed to stop his truck as required before entering said intersection. It was the duty of the defendant, Eunice Davis, operating her cab by and through her agent, Tommy Shidler, though said cab was operating on a through street but not yet in the intersection of Grant and Cleveland Streets, to yield the right-of-way to the plaintiff. And if you find that these were the facts and the defendants did not yield the right-of-way then your verdict should be for the plaintiffs, James O. Self and Mrs. James O. Self.'

We agree that it was error for the court to give the above instruction. It was a binding instruction, and it also excluded from the jury any opportunity to consider, first, whether defendants were guilty of negligence in failing to yield the right of way, and second, whether such negligence, if any, was the proximate cause of the collision.

To uphold the above instruction, appellee relies strongly on the case of Brown v. Parker, 217 Ark. 700, 233 S.W.2d 64, where this court approved, they say, a similar instruction, it being instruction No. 12. It must be conceded that said instruction No. 12 embodies practically the same language [admittedly applied to similar circumstances] as is used in instruction No. 1 copied above. However there is this vital difference in the two instructions: The last part of instruction No. 12 reads: 'If you find that she [in this case appellant] failed to yield the right-of-way to Parker [in this case appellee] when she was under a duty to do so, and that such failure on her part was negligence, and that such negligence was the sole and proximate cause of the accident, then in that event you cannot return a verdict against Parker in this case.' The language last quoted was not contained in instruction No. 1, nor was any similar language used. Specific objections were made by appellant to instruction No. 1, pointing out the defects mentioned above.

Notwithstanding the above, however, appellee contends most forcefully that (a) any defect in the instruction was cured by other instructions of the court and that (b) said instruction must be approved under the authority of Hearn v. East Texas Motor Freight Lines, Ark., 241 S.W.2d 259. These contentions present difficulties and call for a review of some of our former decisions and a careful analysis of the Hearn case.

(a) Was instruction No. 1 cured by other instructions given by the court? It is true that other instructions followed immediately which adequately defined negligence generally, which required the jury to find negligence on the part of the defendants, and which required such negligence to be the proximate cause of the injury. Literally these latter instructions covered all the points which were left out of instruction No. 1 as objected to by appellants. The head note in Missouri Pacific Transportation Company v. Howard, 201 Ark. 6, 143 S.W.2d 538, reads as follows: 'Instructions.--An instruction which ignores a material issue in the case about which the evidence is conficting and allows the jury to find a verdict without considering that issue is misleading and prejudicial even though another instruction which carefully presents that issue is found in other parts of the charge.' The...