Neal v. J.B. Hunt Transport, Inc.
| Decision Date | 25 March 1991 |
| Docket Number | No. 90-267,90-267 |
| Parties | Yvette NEAL and Frank Hammond, Appellants, v. J.B. HUNT TRANSPORT, INC., Appellee. |
| Court | Arkansas Supreme Court |
James Gerard Schulze, Little Rock, for appellants.
Bruce Munson, Little Rock, for appellee.
In this negligence case the appellants, Yvette Neal and Frank Hammond, alleged a truck owned by the appellee, J.B. Hunt Transport, Inc., (Hunt) ran their car off the road while passing on a two lane highway, causing Neal and Hammond to be injured. A jury found in favor of Hunt. Neal and Hammond contend two instructions given by the court were erroneous. First, they claim it was error to instruct the jury with respect to a duty they had to yield to the right and not increase speed upon "audible signal," absent any evidence of such a signal. Second, they contend it was error to give a joint venture instruction absent a showing of some business relationship or purpose common to Neal and Hammond. We reverse on the audible signal instruction and discuss the joint venture instruction because the issue may arise on retrial.
Ms. Neal and Mr. Hammond were college students and co-owners of a green 1981 Mazda GLC automobile. Ms. Neal testified she was driving the vehicle south. Hammond, who had been driving earlier, was a passenger. Ms. Neal testified two 18-wheeler trucks passed them. The second passing truck, owned by Hunt and driven by John Delgado, pulled back into the right-hand lane before completing the pass, causing Neal to swerve off the highway and then back on. There was no contact between the vehicles. Neal and Hammond claimed they were injured physically and emotionally.
Hammond's testimony corroborated that of Neal to the effect they were forced off the road when the Hunt truck returned to their lane to avoid hitting the oncoming yellow car.
Billy Gene Piggee testified he was driving north in his yellow car when the incident occurred and that his car was run off the road by the oncoming Hunt truck. One of his rear wheels went into the ditch. He saw the green car go off the highway in the course of the incident.
James Austin was driving north following Piggee. He testified he saw the second (Hunt) truck almost hit the yellow car, and that the green car went off on the other side of the road.
John Delgado, the Hunt driver, testified he recalled the incident but that he was passing "a red Chevrolet Caprice ... being driven ... by [an] elderly woman ... with three ... elderly passenger women." He thought he had plenty of time to pass, but "apparently their speed had increased" and, with the yellow vehicle coming toward him, he watched his mirror to assure clearance of the red Chevrolet Caprice and then switched back to the right-hand lane. When asked, after some coaxing by counsel for Hunt, if he could be wrong about the "red vehicle," Delgado said he could possibly be but he did not believe so. He said it could have been Neal and Hammond he passed.
Arkansas Code Ann. § 27-51-306(2) provides:
Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall yield to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.
Arkansas Model Jury Instructions 903 is designed to allow the court to instruct the jury that violation of a statute, while not necessarily an act of negligence, may be considered along with other facts and circumstances as evidence of negligence. The model instruction permits the court to summarize or quote the statute in question. Counsel for Hunt asked that it be given quoting Ark.Code Ann. § 27-51-306(2) (1987) with a modification. The instruction proffered by Hunt has not been abstracted, but apparently it would have removed the reference to "audible signal," as there was no evidence whatever of any such signal having been given in this case. The court refused the modification and decided to give the instruction, quoting the statute without modification. Counsel for Neal and Hammond objected because the instruction quoting the statutory section would make reference to audible signal despite the lack of any evidence that one was given.
We hold the instruction was abstract and could have been prejudicial and thus constituted reversible error. That was our holding in Smith v. Alexander, 245 Ark. 567, 433 S.W.2d 157 (1968). Counsel for Hunt attempts to distinguish the case, arguing that our holding was based on the fact that there we were dealing with two vehicles, and each driver contended he or she was driving the "overtaking vehicle." While we said that fact was a reason for concluding the jury would be confused by the instruction, we made it clear that:
this rule of the road imposes a duty...
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