Lindle v. Shibley, 5--5401

• Decision Date: 14 December 1970
• Docket Number: No. 5--5401,5--5401
• Citation: 460 S.W.2d 779,249 Ark. 671
• Parties: Jack LINDLE, d/b/a Lindle Shows, Appellant, v. A. G. SHIBLEY, Jr., Appellee.
• Court: Arkansas Supreme Court

Page 779

460 S.W.2d 779

249 Ark. 671

Jack LINDLE, d/b/a Lindle Shows, Appellant, v. A. G. SHIBLEY, Jr., Appellee.

No. 5--5401.

Supreme Court of Arkansas.

Dec. 14, 1970.

Rehearing Denied Jan. 11, 1971.

Reid, Burge & Prevallet, and Gary L. Brewer, Blytheville, for appellant.

Graham Partlow, Jr., and Bill E. Ross, Blytheville, for appellee.

JONES, Justice.

This is an appeal by Jack Lindle, d/b/a Lindle Shows, from a judgment of the Circuit Court of Mississippi County, Chickasawba District, entered on a jury verdict for A. G. Shibley, Jr. in the amount of $25,000 in a suit by Shibley against Lindle for injuries sustained by Shibley while attending a carnival conducted by Lindle when the lights on the carnival grounds went out and Shibley was run into by a third party pedestrian. Lindle assigns errors under ten points relied upon as follows:

'The trial court erred in giving the instruction on res ipsa loquitur because the doctrine is inapplicable in this case.

The court erred in not directing a verdict for the appellant because there was no evidence that the failure of the lights was the proximate cause of the injury.

The trial court erred in refusing to direct a verdict for the appellant because there was no evidence of negligence.

The trial court erred in not granting a mistrial because of appellee's attorney's statement to the jury concerning liability insurance during voir dire examination.

The trial court erred in not giving appellant's requested instruction on an unavoidable accident, AMI 604.

The trial court erred in not instructing the jury that the appellant was not an insurer of the safety of the persons on his premises.

The trial court erred in instructing the jury on concurring proximate causes, AMI 502.

The trial court erred in giving that portion of the damage instruction allowing consideration of earnings to be lost in the future.

The court erred in giving that portion of the damage instruction allowing consideration of visible results of the injury.

The jury verdict was excessive.'

Having concluded that there is no substantial evidence that Lindle was negligent toward Mr. Shilbley and that there is no substantial evidence that the failure of the lights was the proximate cause of Mr. Shibley's injury, we find it unnecessary to discuss the points as specifically presented.

The facts as alleged, and as proven at the trial, appear as follows: For a number of years Lindle had provided entertainment in the form of a carnival for the Northeast Arkansas Fair held each year in Blytheville, Arkansas. The carnival portion of the fair consisted of concessions and amusements on the east and west side of a thoroughfare or midway of the carnival grounds. Mr. Lindle obtained his electrical power from the local power company and distributed it for lighting and other electrical purposes through transformers located in a truck on the carnival grounds, and the distribution of the electric power in the carnival grounds was maintained by Lindle.

About 9:00 p.m. on September 20, 1968, Mr. Shibley, accompanied by his brother-in-law, Mr. Malouf, had entered the fair grounds and was walking along on the east side of the carnival area when the lights in that area suddenly went out. Immediately after the lights went out, and before Mr. Shibley's eyes became adjusted to the darkness, and when, according to his testimony, he could only distinguish the outline of objects; some unknown individual ran into Mr. Shibley from his right side and struck and injured his right knee. The contact was described as similar to a 'football tackle.' Mr. Shibley was taken to a local hospital and later to the Campbell Clinic in Memphis, Tennessee, where it was determined that he had a bone fracture and a torn cartilage in his right knee. He underwent surgery for the correction of his condition which according to the medical evidence resulted in a 15% permanent disability to his right knee.

Mr. Shibley testified that his eyes had not adjusted to the dark at the time he was struck by some person and injured. There is nothing in the record, however, to indicate that Mr. Shibley would not have suffered the same injury in the same accident had he been totally blind to light and dark, and there is no evidence in the record that Mr. Shibley would not have sustained his injury exactly as he did if the lights in the area had not gone out.

The Oklahoma Supreme Court in Myers v. Luttrell, 373 P.2d 22, quoting with approval from prior opinions said:

"The proximate cause of any injury must be the efficient cause which sets in motion the chain of circumstances leading to the injury; if the negligence complained of merely furnishes a condition by which the injury was possible and a subsequent independent act caused the injury, the existence of such condition is not the proximate cause of the injury.'

'Negligence must be shown by evidence, and the evidence, to justify a finding of negligence, must show a breach of duty on the part of the defendant such that a reasonable person should have foreseen would as a natural consequence cause an injury, not necessarily would probably cause an injury in the sense of more likely to cause an injury than not, but the likelihood must be such that a reasonable person could foresee that injury would result in the ordinary course of things. A mere possibility of the injury is not sufficient, where a reasonable man would not consider injury likely to result from the act as one of its ordinary and probable results."

Under Arkansas law, negligence is the 'proximate cause' of an injury only if the injury is the natural and probable consequence of the negligent act and ought to hae been foreseen in the light of attending circumstances. Kisor v. Tulsa Rendering Co., D.C., 113 F.Supp. 10; Southwestern Bell Telephone Co. v. Adams, 199 Ark. 254, 133 S.W.2d 867.

In Hartsock v. Forsgren, Inc., 236 Ark. 167, 365 S.W.2d 117, the defendant maintained a large tank for the storage of tar and permitted some it to escape onto a children's playground. The plaintiff's nine year old son got some of the tar on his feet and the plaintiff-parents were...