Oster v. Jones

• Decision Date: 08 July 1935
• Docket Number: 4-3945
• Citation: 84 S.W.2d 604,191 Ark. 246
• Parties: OSTER v. JONES
• Court: Arkansas Supreme Court

84 S.W.2d 604

191 Ark. 246

OSTER v. JONES

4-3945

Supreme Court of Arkansas

July 8, 1935

Appeal from St. Francis Circuit Court; W. D. Davenport, Judge affirmed.

Action by John T. Jones against Harold M. Oster. From a judgment for plaintiff defendant has appealed.

Judgment affirmed.

Mann & Mann, for appellant.

F F. Harrelson, Winstead Johnson and S. S Hargraves, for appellee.

OPINION

SMITH, J.

Appellee recovered judgment for $ 2,000 against appellant to compensate a personal injury. For the reversal of this judgment, it is insisted that the court erred in giving an instruction numbered 3 at the request of appellee and in refusing to give an instruction numbered 4 requested by appellant. It is also insisted that the verdict is excessive.

The nature of the case and the respective theories upon which it was tried will sufficiently appear from these instructions. Instruction numbered 3, given over the objection and exceptions of appellant, reads as follows: "In this case one of the defenses alleged by the defendant is that the plaintiff's injuries, if any, were caused by the negligence of the driver of the truck on which the plaintiff was riding. The jury is instructed that, if the plaintiff's injuries, if any, were caused solely by the negligence of the driver of the truck on which the plaintiff was riding, then the plaintiff cannot recover; but if, while in the exercise of ordinary care for his own safety, and without negligence on his part, the plaintiff was injured by the combined negligence of the defendant and the driver of the truck on which the plaintiff was riding, then in such event your verdict should be for the plaintiff as against the defendant, for in such case the defendant, together with the driver of the truck on which plaintiff was riding, would be what is known as joint tort-feasors, and the defendant, as well as the driver of the truck on which plaintiff was riding, would be liable, and the plaintiff would be entitled to recover." Instruction numbered 4, which the court refused to give at appellant's request, reads as follows: "The jury is instructed that, if you find from the evidence that the car in which the plaintiff was riding, and also the car in which the defendants were riding were both on the highway and proceeding in the same direction, and that the driver of the car in which plaintiff was riding gave a signal which in common acceptation indicated to the defendant that it was the purpose of the plaintiff to turn to the left side of the highway, the defendant had the right to assume that the car in which plaintiff was riding was turning to the left, and that the right-of-way for the defendants would be left clear, and if you further find that the plaintiff or the car in which he was riding started to turn to the left, or did turn to the left, and thereafter immediately turned off to the right, and in the path or course in which the defendants were expected to drive, and that the sudden turning of the car in which plaintiff was riding to the right was the proximate cause of the plaintiff's injury, the defendants would not be liable, and your verdict should be for the defendant."

Appellee was riding in but was not driving the truck, and, as usually happens in these collision cases, the testimony is in irreconcilable conflict; the driver of each car excused himself from blame and attempted to place the responsibility upon the other.

It is argued that instruction numbered 3 is erroneous because appellee alleged that appellant was solely to blame for the collision, and did not sue the driver of the truck; and for the additional reason that it permits a recovery against appellant, even though his action was not the proximate cause of the injury.

We think there was no error in this instruction. It tells the jury very plainly that, if appellee's injuries were caused solely by the negligence of the driver of the truck in which appellee was riding, appellee could not recover. In other words, if appellant was not guilty of negligence contributing to the injury, he was not liable; but, if there was such negligence, this would be a proximate cause. The instruction further declares the law to be that, if appellee was injured, while in the exercise of ordinary care and without negligence on his part, by the combined negligence of appellant and the driver of the trunk in which appellee was riding, a verdict should be returned against appellant. This is true because, in the event stated, both drivers would be responsible and liable for the injury which resulted from their combined negligence. It is true the truck driver was not a party to the suit, but it was not essential that he should be, as appellee had the right to sue either or both of the joint tort-feasors, as "the author of either negligent act is liable to the injured party for the damage sustained." Missouri Pacific Rd. Co. v. Riley, 185 Ark. 699, 706, 49 S.W.2d 397.

Appellant testified that, as he approached the truck, he was driving about forty-five to fifty miles per hour. Witnesses for appellee placed the speed at a greater rate. Appellant testified that he could not say exactly how fast he was driving when he hit the truck, but it is his theory that his speed,...