Harkrider v. Cox

• Decision Date: 02 March 1959
• Docket Number: No. 5-1705,5-1705
• Parties: G. W. HARKRIDER, Appellant, v. Oma Lee COX et al., Appellees.
• Court: Arkansas Supreme Court

Page 226

321 S.W.2d 226

230 Ark. 155

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

No. 5-1705.

Supreme Court of Arkansas.

March 2, 1959.

Shaver, Tackett & Jones, Texarkana, for appellant.

Lookadoo, Gooch & Lookadoo, Arkadelphia, for appellees.

McFADDIN, Justice.

This appeal stems from a traffic mishap. Appellee, Oma Lee Cox, was the plaintiff ¹ below; and appellant, G. W. Harkrider, was defendant. We will refer to the parties as they were styled in the Trial Court.

The Cox family and the Harkrider family were friends and neighbors. On Saturday morning, November 16, 1957 Mr. Harkrider was driving his pickup truck from Curtis Junction to Arkadelphia, where he worked. Miss Oma Lee Cox (17 years of age and the daughter of his neighbor, J. C. Cox) also worked in Arkadelphia; and Mr. Harkrider, seeing her waiting for a bus, invited her to ride to Arkadelphia with him in the pickup truck. They necessarily had to travel on U. S. Highway No. 67, where the traffic was very heavy: also there was an extremely dense fog. Mr. Harkrider, in attempting to overtake and pass a cattle truck in front of him, got on his left side of the highway and had a collision with an oncoming vehicle. Miss Cox was seriously injured, and brought this action against Mr. Harkrider to recover damages. The jury verdict was for Miss Cox for an amount not here questioned; and from the judgment rendered on the verdict, there is this appeal. Seven points, all relating to instructions, are assigned as errors. We group and discuss the pertinent assignments in convenient topic headings.

I. Defendant's Request for Instructed Verdict. Defendant stoutly insists that he was entitled to an instructed verdict because of our guest statute and the cases construing it. In his brief he says: 'It is undisputed--in fact it is alleged and admitted by plaintiff--that Oma Lee Cox was injured while riding in the pickup truck as defendant's guest. The most serious question presented is the sufficiency of the evidence to sustain wilful and wanton disregard'.

We are thus brought, face to face, with our guest statutes, which are Act No. 61 of 1935, and Act 179 of 1935, and may be found in § 75-913 and § 75-915 Ark.Stats. One of these Acts (No. 61) says that a guest can only recover when '* * * such vehicle was wilfully and wantonly operated in disregard of the rights of others'. The other Act (No. 179) prohibits recovery '* * * unless such injury shall have been caused by the willful misconduct of such owner or operator'. Thus, it is conceded that before Miss Cox can recover against Mr. Harkrider, she must establish that he was guilty of wilful and wanton negligence in the operation of the truck at the time of her injury.

Defendant's counsel have listed many of our cases involving the said guest statutes; ² but for us to discuss each of these cases in detail would be a work of supererogation and would serve no useful purpose; because, after all, it is a question in each case whether the particular facts therein made a jury question as to wilful and wanton negligence. In Scott v. Shairrick, 225 Ark. 59, 279 S.W.2d 39, 42, we said 'It is clear from the evidence in this case that the trial court had no right to declare as a matter of law that appellant's negligence was not of the degree described in the above statutes. The degree of appellant's negligence was therefore a matter to be presented to the jury, as was done here. In McAllister, Administrator v. Calhoun, 212 Ark. 17, 205 S.W.2d 40, 42, we quoted with approval from Splawn v. Wright, 198 Ark. 197, 128 S.W.2d 248: 'Whether an automobile is being operated in such a manner as to amount to wanton and willful conduct in disregard of the rights of others must be determined by the facts and circumstances of each individual case.''

We proceed, therefore, to review the facts in the case at bar:

(a) Mr. Harkrider had been driving on Highway 67 from his home to Arkadelphia for a number of years, so he knew that it was a busy highway.

(b) On the particular morning in question, the fog and mist were so heavy that visibility was limited to 50 or 100 feet. ³ Mr. Harkrider was driving on a straight stretch of road, had been following a cattle truck for several miles, and had been unable to pass it because of the number of approaching vehicles.

(c) The cattle truck in front of Mr. Harkrider was fourteen feet long and was driving at a speed of 40 miles per hour; ⁴ so to pass the cattle truck Mr. Harkrider would have been required to go at least 45 miles per hour. ⁵ A car travelling 45 miles an hour goes 66 feet per second, so in passing the cattle truck Mr. Harkrider was on his wrong side of the road and travelling at a speed of 66 feet per second when he could only see from 50 to 100 feet in front of him. It would require some time for a car going 45 miles an hour to pass a car going 40 miles an hour; yet during all of that time, Mr. Harkrider could not see what was coming and was on the wrong side of the road! He did not get there accidentally: he got there intentionally and deliberately.

(d) The fog was so heavy that the cars had on either parking lights or full driving lights; and yet Mr. Harkrider deliberately undertook to drive on the wrong side of the road in such perilous conditions of visibility. There were several vehicles going south. The first one saw Mr. Harkrider's car just in time to take to the ditch and avoid a collision; but the second car was not so fortunate; and the collision resulted.

(e) The fact that the 17-year old girl (the plaintiff in this case) did not protest to Mr. Harkrider regarding his driving, and did not tell him how to drive the car, certainly, cannot be used against her as a matter of law. When did a child have to tell her father's contemporary to be careful in his driving? Under the facts in this case, the effect of her failure to protest, was for the jury.

So much for the facts. It is admitted that Mr. Harkrider was negligent: the question is, whether he was guilty of wilful and wanton negligence. Webster's Dictionary says of wilful: '* * * self-determined, voluntary, intentional * * *'. Webster's Dictionary says of wanton: '* * * marked by or manifesting arrogant recklessness of justice, of the rights or feelings of others * * *.' Mr. Harkrider was certainly violating the rights of those approaching vehicles, and was certainly taking a desperate gamble when he deliberately and intentionally drove on the wrong side of the road at a speed of 66 feet per second under conditions which made it impossible for him to see more than 100 feet in front of him. In Froman v. J. R. Kelley Stave & Heading Co., 196 Ark. 808, 120 S.W.2d 164, 167, the late and beloved Justice Frank G. Smith said: '* * * the difference between gross negligence and wilful and wanton misconduct is so narrow and indistinct that in many instances the question is one for the jury whether the negligence had become wilful and wanton. The instant case is such a case.' ⁶

Who should decide whether Mr. Harkrider was guilty of wilful and wanton negligence under the facts in this case? It was for the jury to decide. The rule is, that when fair-minded men might differ, then the question is one for the jury. ⁷ In Olin Mathieson Chemical Corporation v. Shirey, 226 Ark. 530, 291 S.W.2d 250, 251, we referred to the rule well established in Arkansas:

'The rule is well established that where fair-minded men might honestly differ as to the conclusion to be drawn from facts, whether controverted or uncontroverted, the question should go to the jury. St. Louis, I. M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S.W. 786. It is also well established that it is proper to direct a verdict for the defendant only when, under the evidence and all reasonable inferences deducible therefrom, the plaintiff is not--under the law--entitled to recover. Wortz v. Ft. Smith Biscuit Co., 105 Ark. 526, 151 S.W. 691.'

Under the facts here shown, a jury question was made as to whether Mr. Harkrider was guilty of wilful and wanton negligence; and the Trial Court was correct in refusing to instruct a verdict for the defendant.

II. Erroneous Instruction. The Trial Court gave a series of instructions relating generally to what is sometimes called the 'law of the road': i. e., the law as to speed, lookout, control, passing an overtaken vehicle, etc. The defendant insists that each of these instructions should have pointed out that the violation of such 'law of the road' was merely evidence of simple negligence, as distinguished from wilful and wanton negligence. Probably clarifying words to such effect should have preceded or followed these several instructions on the 'law of the road'; but such can be accomplished in the event of a new trial which may result from the reversal we must make because of the error of the Court in giving the Court's Instruction No. 14 over the specific objections that the defendant offered to it. The said instruction reads:

'No motor vehicle shall be driven at a speed which would not be reasonable and prudent under the circumstances then existing. In no event shall pickup trucks be driven on the open highway at a speed greater than 55 miles an hour. One driving at this speed or a lesser speed is not relieved from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reasons of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with the duty of all persons to use due care.' (Emphasis supplied.)

The defendant objected to this instruction, ⁸ pointing out that in this case there was no evidence of (a) an intersection, (b) a curve, (c) a hill crest, or (d)...