Harlan v. Curbo
| Decision Date | 10 May 1971 |
| Docket Number | No. 5--5526,5--5526 |
| Citation | 466 S.W.2d 459,250 Ark. 610 |
| Parties | Billy N. HARLAN et al., Appellants, v. C. W. CURBO, Guardian ad Litem for Jan Curbo, a Minor, Appellee. |
| Court | Arkansas Supreme Court |
John D. Eldridge, Augusta, and Terral, Rawlings, Matthews & Purtle, Little Rock, for appellants.
Hodges, Hodges & Hodges, Newport, for appellee.
The three plaintiff-appellants, Billy N. Harlan, his wife, Cherry Harlan, and their five-year-old son, Robert Harlan, brought this action for personal injuries and property damage sustained when their car ran into the back of a car being driven by the minor appellee, Jan Curbo. The collision occurred on Highway 33 at a point several miles south of Augusta. It was the plaintiffs' theory that Curbo negligently backed out of a driveway onto the highway and had just started moving forward when his vehicle was struck from behind by the oncoming Harlan car.
The case was submitted to the jury on interrogatories. The jury apportioned the total negligence in the ratio of 40% to Billy N. Harlan and 60% to young Curbo. The verdict fixed the plaintiffs' total damages at $750 for Billy N. Harlan, $1,000 for Cherry Harlan, and zero dollars for Robert Harlan. In appealing from the judgment upon the verdicts the Harlans contend that the amount of each verdict is demonstrably inadequate. The three appellants present separate contentions, which must be discussed individually.
First: Billy N. Harlan's verdict for $750. According to the undisputed proof, this verdict is inadequate. It was stipulated that the damage to Harlan's car amounted to $784.50. In addition, Harlan suffered a deep cut on his scalp, which was closed by 13 surface stitches and a number of additional subcutaneous stitches. The doctor's original treatment took from 30 to 45 minutes, and Harlan had to return a few days later for the removal of the outer stitches. Yet the jury's verdict, fixed without regard to any issue of comparative negligence, was less than the stipulated property damage. The judgment therefore falls within the rule that the recipient of a substantial but inadequate award is entitled to a new trial if other prejudicial error is shown. Smith v. Ark. Power & Light Co., 191 Ark. 389, 86 S.W.2d 411 (1935).
Such other error does appear. Even though Curbo's car had just begun to move forward, the court gave AMI 902, Civil, with respect to the superior right of the forward vehicle. In the circumstances the giving of that instruction was error, because no specific applicable purpose for which Curbo supposedly had a superior right to the use of the highway existed, and consequently no such purpose was inserted in the instruction. In Smith v. Alexander, 245 Ark. 567, 433 S.W.2d 157 (1968), we pointed out that such a specific purpose must be inserted whenever the instruction is used.
The court also erred in instructing the jury that in passing upon the question of the plaintiffs' negligence the jurors might take into consideration the fact that seat belts were available for the plaintiffs' use. The only evidence about seat belts was a statement that such belts were available, at least for Mr. and Mrs. Harlan, and that the belts were not fastened at the time of the collision. The court had already given AMI 305B, Civil, explaining the duty of all persons involved in the occurrence to use ordinary care for their own safety. The additional reference to the Harlans' failure to use seat belts not only was an unnecessary duplication but also singled out a particular fact for undue emphasis. Rutland v. P. H. Ruebel & Co., 202 Ark. 987, 154 S.W.2d 578 (1941).
The two erroneous instructions that we have mentioned may have led the jury to attribute to Billy N. Harlan a greater percentage of the total negligence than should have been the case. Harlan's judgment must therefore be reversed and the cause remanded for a new trial.
Second: Cherry Harlan's verdict for $1,000. With respect to this verdict there is no...
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