Patterson v. Roetzel & Chipman

• Court: Arkansas Supreme Court
• Writing for the Court: WOOD, J.
• Citation: Patterson v. Roetzel & Chipman, 164 S.W. 301, 111 Ark. 538 (Ark. 1914)
• Decision Date: 23 February 1914
• Parties: PATTERSON v. ROETZEL & CHIPMAN

164 S.W. 301

111 Ark. 538

PATTERSON v. ROETZEL & CHIPMAN

Supreme Court of Arkansas

February 23, 1914

Appeal from Mississippi Circuit Court, Osceola District; W. J Driver, Judge; affirmed.

STATEMENT BY THE COURT.

The appellant sued the appellees to recover damages for personal injuries sustained by him when the horse that he was riding fell into a trench dug by the appellees in the town of Osceola.

The appellees were contractors, engaged, under a contract with the sewer commissioners of the town of Osceola, in putting in a sewer system. Among other things, it was provided in the contract that the contractor "shall take all necessary precautions to prevent injury to the public, or to his workmen, or to stock, such as providing crossing plank fencing off his work, keeping lanterns burning at night etc., he shall hold the board harmless against all claims for damages."

The complaint alleged negligent acts on the part of appellees which are specifically set forth in detail in the complaint to the effect that certain excavations made by the appellees along Elm Street and especially at the intersection of Hale Avenue and Elm Street, were improperly filled and permitted to remain in a dangerous condition, without barriers and guards, and without a warning light for the protection of the public; that the appellant was riding horseback, and while attempting to cross the trench dug by appellees, the horse which he was riding stepped with his forefeet upon the earth with which the trench was filled, when same suddenly gave way, causing the horse's feet and legs to sink into the trench up to his body and neck, which resulted in throwing appellant from the horse and causing the injuries of which he complained.

The appellees denied the material allegations of the complaint, and set up contributory negligence on the part of appellant.

There was testimony introduced on behalf of the appellant tending to sustain the allegations of his complaint, and there was also testimony tending to sustain the allegations of the appellee's answer. The issues of negligence and contributory negligence were submitted to the jury upon instructions given by the court. After defining the issues, the court, among others, gave of its own motion, the following instructions:

"3. The burden of proving negligence rests upon the plaintiff, and, in this case, if you find from a preponderance of the evidence that defendants were negligent in failing to fill the excavation made by them at the intersection of Hale Avenue and Elm Streets in the city of Osceola, and thereby make the same in the same condition as it was prior to the making of the excavation, and further find from the evidence that such place was for said reason a dangerous place, and that it was left by defendants without barriers or guard or warning lights, and that plaintiff, while in the exercise of ordinary care for his own safety, rode his horse into such dangerous place, causing him to be thrown from said horse and to sustain a broken arm, and find that the negligence of defendants was the proximate cause of the injury, your verdict should be for the plaintiff."

"4. By ordinary care is meant that degree of care which a reasonable and prudent person would exercise under similar circumstances."

"6. Contributory negligence is the want of ordinary care of a person for his own safety, but for which, taken in connection with the negligence of the party sought to be charged, the injury would not have occurred. The duty to prove contributory negligence devolves upon the defendants unless such facts sufficiently appear from the testimony on the part of the plaintiff."

And in the seventh instruction, the court told the jury: "If you further find from a preponderance of the evidence that but for the failure on the part of the plaintiff to exercise ordinary care for his own safety, the injury would not have occurred, or that such failure to observe such degree of care on his part in any degree contributed to his injury, your verdict should be for the defendants."

The eighth instruction told the jury that, "No one of these instructions can declare the whole law of this case, and no one of them undertakes to do so, and, consequently, no one of them is any more the law or of any more importance than any other one of them. You are to read and consider such instructions as a whole."

The appellant requested the court to instruct the jury as follows: "If the plaintiff acted as a reasonably prudent person would have acted under the same circumstances, he was not guilty of contributory negligence." The court refused this prayer, and appellant duly saved his exceptions. The appellant also excepted to the ruling of the court in giving instruction No. 3, and these are the assignments of error which he urges as grounds for a reversal of the judgment. The verdict and judgment were in favor of the appellees.

Judgment affirmed.

J. T. Coston, for appellant.

1. The law is settled in this State that a litigant is entitled to have any issue of the case submitted to the jury under a specific instruction; and, even though the same point may be covered in a general way by other instructions, it is error for the court to refuse to give a specific instruction, when requested to do so. 62 S.W. 64, 65; 97 S.W. 285; 102 S.W. 695; 38 Cyc. 1719; 105 F. 54; 3 S.E. 262; 15 N.W. 855; 50 S.W. 126; 35 S.W. 1059; 115 S.W. 198; 55 S.E. 416; 67 N.E. 409.

2. The court's instruction No. 3 is erroneous in that on the issue of contributory negligence, it places the burden of proof on the plaintiff, instead of the defendants. 58 Ark. 130, 131. The court's other instruction to the effect that, "The duty to prove contributory negligence devolves upon the defendant," does not relieve the situation, for it is in direct conflict with instruction 3, which the jury evidently followed, for contributory negligence was the crucial point in the case. 1 Bashfield on Instructions, §§ 76, 77, 78; 147 S.W. 90.

Appellees pro se.

When instruction 3 is considered in connection with instruction 6 and the other instructions given, as it should be, there is no foundation for the contention that it placed the burden of proof on the plaintiff as to contributory negligence.

We think the instructions clearly define the law on the question of negligence, as also the law as to the burden of proving the same. Cooley on Torts, § 809; Sackett on Instructions to Juries, § 255; 26 Ind. 370; 81 Ill. 590; 50 Mo. 461; 87 Ark. 396; 38 Cyc. 1784; Id. 1786; 80 Ark....