Harkrider v. Cox

• Citation: 334 S.W.2d 875,232 Ark. 165
• Decision Date: 09 May 1960
• Docket Number: No. 5-2133,5-2133
• Parties: G. W. HARKRIDER, Appellant, v. Oma Lee COX et al., Appellees.
• Court: Supreme Court of Arkansas

Page 875

334 S.W.2d 875

232 Ark. 165

G. W. HARKRIDER, Appellant v. Oma Lee COX et al., Appellees.

No. 5-2133.

Supreme Court of Arkansas.

May 9, 1960.

Shaver, Tackett & Jones, Texarkana, for appellant.

Lookadoo, Gooch & Lookadoo, Arkadelphia, for appellees.

HARRIS, Chief Justice.

This is the second appeal of this case. See Harkrider v. Cox, Ark. March 2nd, 1959, 321 S.W.2d 226, 229. The original judgment was reversed, and the cause remanded, because of an abstract instruction given. ¹ On re-trial, the jury returned a verdict in favor of appellee, Oma Lee Cox, for $8,000, and for the appellee, J. C. Cox, Jr., the sum of $625. From the judgment so entered, appellant brings this appeal.

A brief resume of the facts show that on November 16, 1957, Oma Lee Cox, a young lady sixteen years of age, was living a short distance from Curtis Junction in Clark County, Arkansas. Miss Cox was a senior in high school, and worked on Saturdays and holidays at a department store in Arkadelphia. She generally would catch a bus to that city, but on occasion had ridden with a neighbor, G. W. Harkrider, who also was employed in Arkadelphia. On the aforementioned date, she was given a ride by appellant in his 1952 Chevrolet pickup truck. They proceeded on U.S. Highway 67, where traffic was heavy; there was an extremely dense fog, testimony establishing that visibility was limited to a distance of fifty to one hundred feet. In attempting to overtake and pass a cattle truck, which was proceeding in front of him at approximately 40 miles per hour, Harkrider moved to the left side of the highway, and collided with an oncoming vehicle. Miss Cox suffered serious injuries, and through her father as next friend, instituted suit against appellant. Mr. Cox sought recovery individually for hospital, medical, and nursing bills, and loss of services of his daughter. On trial, the amounts, hereinbefore mentioned, were awarded.

For reversal, appellant relies upon seven points, the first being a contention that the evidence was not sufficient to sustain a finding of willful and wanton disregard on the part of Harkrider. This point was thoroughly and fully discussed in the opinion of March 2, 1959, including a full recitation of the events leading up to, and including, the collision. The court concluded its discussion on this point by stating 'the rule is, that when fair-minded men might differ, then the question is one for the jury', and held that a jury question was made as to whether Harkrider was guilty of willful and wanton negligence. The proof in the present case, relating to the collision, was practically the same as in the first trial, no less substantial, and no additional reasons or arguments are made which are persuasive of an erroneous holding.

Next, appellant complains of certain instructions given by the court (3, 4, 5, 6, 7, 11, 12, 13, 14 and 14 1/2). Instruction No. 3 defines 'proximate cause'; No. 4 defines 'ordinary care'; No. 5, 'negligence'; No. 6, 'contributory negligence'; and No. 7, 'gross negligence'. These instructions correctly defined the terms involved, but appellant argues that the instructions led the jury to believe that appellees were entitled to recover on a showing of mere negligence, or negligence less than the willful and wanton degree. We disagree. As stated in Pinkerton v. Davis, 212 Ark. 796, 207 S.W.2d 742, 743:

'When all the instructions are thus considered we cannot say that they incorrectly presented the law, or that the jury could have been misled thereby.'

In Instruction No. 8, the court defined 'willful and wanton negligence'. Such instruction was as follows:

'To operate an automobile in willful and wanton disregard of the rights of others is a course of conduct which involves deliberate, intentional or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom. It is greater than gross negligence.

'To be willfully negligent, one must be conscious of his conduct, and, although having no intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury.'

In Instruction No. 18, the court instructed the jury as follows:

'It is agreed by the parties hereto that Oma Lee Cox was a guest in the pickup truck operated by the defendant Harkrider. Our law provides that no person transported as a guest shall have a cause of action against the operator unless the vehicle was willfully and wantonly operated in disregard of the rights of others.

'Therefore, before Oma Lee Cox can recover in this case, she must establish by a preponderance of the evidence that her injuries received in this upset were due to some act or acts of willful and wanton misconduct on the part of her host, the defendant, Harkrider.'

The jury therefore, was plainly told that recovery was predicated upon willful and wanton misconduct or disregard on the part of Harkrider, and this requirement was reiterated in Instructions 19 and 20. The latter reads as follows:

'You are told that even though you believe from a preponderance of the evidence that the defendant driver was guilty of gross negligence in the operation of his vehicle--that degree of negligence would not of itself entitle plaintiff Oma Lee Cox to recover. Oma Lee Cox must go further and show by a preponderance of the evidence that Harkrider persisted in a course of conduct which to the knowledge of an ordinarily prudent person would naturally or probably result in injury.'

Appellant's contention is held to be without merit.

Instruction No. 11 told the jury that they could not speculate on the issue of negligence or any degree thereof. Appellant states:

'Willful and wanton disregard has often been described by this Court as greater than any degree of negligence. Therefore, this instruction concerning negligence and degrees thereof is abstract law, misleading, and erroneous. We are not dealing with negligence or any degree thereof. We are dealing with willful or wanton misconduct.'

We do not agree that willful and wanton disregard or misconduct is an area, or field, of law entirely distinct and apart from negligence. Our previous opinion several times mentions 'wilful and wanton negligence'. 'Wilful and wanton negligence' and 'willful and wanton disregard' are synonymous in meaning, and as stated in the previous paragraph, the court properly instructed the jury in this regard.

Instructions 12, 13, 14 and 14 1/2 all deal with 'rules of the road', and were proper instructions. Appellant states:

'The jury should have been advised, in accordance with defendant's request, in each rule-of-the-road instruction, that plaintiff would not be entitled to recover unless the jury found that the defendant was guilty of willful and wanton disregard for the consequences of his acts when violating any rule of the road.'

We reiterate that the 'willful or wanton' feature was covered in the...