Rhoden v. Lovelady

• Decision Date: 22 November 1965
• Docket Number: No. 5-3681,5-3681
• Citation: Rhoden v. Lovelady, 239 Ark. 1015, 395 S.W.2d 756 (Ark. 1965)
• Parties: B. C. RHODEN, Adm., Estate of John Vincent Rhoden, Deceased, Appellant, v. Andrew LOVELADY and Jackson Cookie Co., Inc., Appellees.
• Court: Arkansas Supreme Court

Page 756

395 S.W.2d 756

239 Ark. 1015

B. C. RHODEN, Adm., Estate of John Vincent Rhoden, Deceased, Appellant, v. Andrew LOVELADY and Jackson Cookie Co., Inc., Appellees.

No. 5-3681.

Supreme Court of Arkansas.

Nov. 22, 1965.

Felver A. Rowell, Jr., Morrilton, for appellant.

Gordon & Gordon, Morrilton, for appellees.

HOLT, Justice.

The decedent, 82 years of age, was driving his car at a slow rate of speed in a westerly direction as he approached the entrance to his son's [appellant's] driveway. The driveway was on the south side of the highway. Appellee Lovelady, a salesman for appellee Jackson Cookie Company, was driving a truck in an easterly direction at a speed of approximately 40 to 50 miles per hour as he approached decedent's automobile. There was testimony that the decedent had his arm out the window giving a signal. Appellee Lovelady testified that he could see decedent's vehicle, apparently stopped, at a distance of 200 to 250 yards and observed no signal being given until he got closer; that the decedent stayed in the westbound or his proper traffic lane until appellee was 50 to 60 feet from him when decedent turned to his left into the eastbound or appellee's traffic lane where the fatal collision occurred. Appellee swerved to avoid the collision. According to appellee, he never at any time slowed the speed of his vehicle. The issues of negligence, based upon appellant's complaint and appellees' answer and counterclaim, were submitted to the jury which denied damages to both parties. From the judgment on this verdict appellant brings this appeal.

For reversal appellant contends that the trial court erred in giving appellees' requested instruction on unavoidable accident. The appellees argue, however, that since the jury found appellees free of negligence in answer to interrogatories that the instruction constituted harmless error.

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 be given.' Also, we stated that only in exceptional circumstances is such an instruction permissible. Such a situation would be where the alleged injury resulted from some cause other than the negligence of either party. See, also, Burton v. Bingham, 239 Ark. 436, 389 S.W.2d 876. In our view the evidence in the case at bar did not make a submissible issue for the jury on the theory of an unavoidable accident and we reaffirm the cited cases.

Appellant further contends that the trial court erred in not permitting the appellant...