Oklahoma Tire & Supply Co. v. Bass

• Citation: 401 S.W.2d 35,240 Ark. 496
• Decision Date: 21 March 1966
• Docket Number: No. 5--3818,5--3818
• Parties: OKLAHOMA TIRE AND SUPPLY COMPANY et al., Appellants, v. A. J. BASS et al., Appellees.
• Court: Arkansas Supreme Court

Page 35

401 S.W.2d 35

240 Ark. 496

OKLAHOMA TIRE AND SUPPLY COMPANY et al., Appellants, v. A. J. BASS et al., Appellees.

No. 5--3818.

Supreme Court of Arkansas.

March 21, 1966.

Smith, Williams, Friday & Bowen, by William A. Eldredge, and George Pike, Jr., Little Rock, for appellants.

Terral, Rawlings, Matthews & Purtle, and Wright, Lindsey & Jennings, Little Rock, for appellees.

McFADDIN, Justice.

The appellants (defendants) prosecute this appeal from an order of the Circuit Court granting the appellees (plaintiffs) a new trial (Ark.Stat.Ann. § 27--2101 (Repl.1962) as amended by Act No. 547 of 1963).

Appellee Bass and appellee Taylor filed separate actions against the appellants, Oklahoma Tire & Supply Company and Doyle Watts, its employee. Each plaintiff claimed damages resulting from a traffic mishap alleged to have been occasioned by the negligence of Watts. Testimony offered by the plaintiffs was to the following effect: Bass, in his Cadillac, and Taylor, in his Ford, were both proceeding north on Interstate 30, Bass being in the west lane and Taylor in the center lane. Appellant Watts, driving a truck of Oklahoma Tire & Supply Company, entered the Interstate Highway from the Roosevelt Road entrance lane on the east and proceeded north; and, in attempting to pass a vehicle in front of him, Watts cut to the west into the lane being traveled by Taylor, who, to avoid a collision with Watts, cut to the west into the lane being traveled by Bass. Bass' car struck Taylor's car; and Watts' truck, untouched, went on to the north; but Taylor got the license number of Watts' truck.

The plaintiffs alleged personal injuries and property damage and claimed that Watts and Oklahoma Tire & Supply Company were guilty of negligence in that Watts swerved to the left and caused the collision. The defendants denied everything. At the trial, and on motion of the defendants, the Court gave this Instruction No. 4, as amended, on unavoidable casualty, which instruction read:

'The burden rests upon the one who seeks to recover to establish by a preponderance of the evidence that the accident complained of was not the result of an unavoidable accident. An unavoidable accident is one not avoidable by precaution which reasonable men would be expected to take. Such an accident furnishes no basis for recovery. ¹

The jury's verdict was for Watts and Oklahoma Tire & Supply Company; but, on motion of the plaintiffs, the Trial Court set aside the verdict and granted a new trial, and recited in the order:

'(1) That the Court erred in giving the defendant's instruction on unavoidable accident and that the new trial should be granted to the plaintiffs, A. J. Bass and Horace Taylor because of said error.' ²

From the order of the Circuit Court granting a new trial, appellants, Watts and Oklahoma Tire & Supply Company, prosecute this appeal, and urge two points:

'I. The Trial Court properly gave the unavoidable accident instruction.

'II. Plaintiffs were not prejudiced by the giving of the unavoidable accident instruction.'

We hold that the Trial Court was correct in granting the new trial. Our recent cases on unavoidable casualty instructions are: Houston v. Adams, 239 Ark. 346, 389 S.W.2d 872; Burton v. Bingham, 239 Ark. 436, 389 S.W.2d 876; and Rhoden v. Lovelady, 239 Ark. 1015, 395 S.W.2d 756. In these Opinions we have tried to carefully delineate the rare situation when an instruction on unavoidable casualty should be given. In the case at bar, the Bass car would never have struck the Taylor car unless someone was negligent. That person was either Bass, for driving too fast; Taylor, for swerving into Bass' lane; or Watts, for forcing Taylor to swerve to the west into Bass' lane of traffic. So some party to this case was negligent. In Rhoden v. Lovelady, supra, we said:

'In the case at bar, the pleadings and the evidence adduced indicated this accident was caused by the negligence of one or both of the parties and that this accident was not inevitable. It could not have happened without someone being negligent. In the very recent case of Houston v. Adams, 239 Ark. 346, 389 S.W.2d 872, we re-examined the suitability of an instruction on unavoidable accident in negligence cases and disapproved it. There we said: '* * * when, as here, the question is merely whether one or more of the parties were guilty of negligence we hold that the instruction in question should not...