Scott v. Shairrick

• Decision Date: 16 May 1952
• Docket Number: No. 5-682,5-682
• Citation: 225 Ark. 59,279 S.W.2d 39
• Parties: J. L. SCOTT, Appellant, v. James SHAIRRICK, Appellee.
• Court: Arkansas Supreme Court

Page 39

279 S.W.2d 39

225 Ark. 59

J. L. SCOTT, Appellant, v. James SHAIRRICK, Appellee.

No. 5-682.

Supreme Court of Arkansas.

May 16, 1952.

Henry B. Means and W. H. McClellan, Malvern, for appellant.

Cole & Epperson, Malvern, for appellee.

WARD, Justice.

Appellee, James Shairrick, while riding as a guest in an automobile owned and driven by appellant, J. L. Scott, was injured by the alleged willful negligence of appellant in operating the automobile. Suit was filed by appellee, resulting in a jury verdict and a judgment against appellant.

The complaint contained the following material allegations of negligence: On or about the second day of March, 1954, the plaintiff was riding as a guest in an automobile owned and being operated by the defendant, J. L. Scott, who on account of willful negligence, wrecked said automobile and injured the plaintiff; that just prior to the said wreck, the defendant was willfully operating at a high and excessive rate of speed, and willfully whipping in and out of traffic and from one side of the road to the other, and was willfully passing vehicles under extremely dangerous circumstances; and although the plaintiff and others in said car earnestly protested the manner in which the defendant was driving, and made numerous requests that he slow down and get in his proper line of traffic, and warned the defendant that he was going to hurt himself or someone else, the defendant ignored them and continued to operate the automobile in a willful, wanton and careless disregard to the rights of the plaintiff and others; that at the point where the wreck occurred, the defendant was willfully attempting to pass a vehicle travelling in his direction in the face of oncoming traffic and willfully ran his vehicle into a ditch causing said wreck and personal injuries to the plaintiff.

Appellant's answer was a general denial, contributory negligence on the part of appellee, and that appellee, being a gratuitous guest, was barred from recovery by Ark.Stats. § 75-913 and § 75-915--commonly called the Guest Statutes.

Testimony. There is very little conflict in the testimony given by the witnesses for both sides. On March 2, 1954 appellant and appellee together with Milton Van Dusen, Paul Register and C. L. Honold, all single boys in their early twenties, got together in Malvern during the noon hour and arranged to go to the horse races at Hot Springs. They left in appellant's car with appellant driving and arrived at the race track shortly before the races began. Appellee, Van Dusen and Register went into the track while appellant and Honold went to a liquor store nearby where appellant purchased a pint of whiskey and Honold purchased a pint of vodka or gin before they joined the others inside. During the time the races were in progress and between each race all of the boys except appellant drank some beer, perhaps as much as 4 to 6 bottles each during the entire period. Appellant during this time drank the liquor as a mixed drink, perhaps mixed with beer. None of the boys were observed by the others as becoming drunk or unduly under the influence of liquor. After the wreck, however, and after the boys had been taken to different hospitals appellant's doctor testified that he [appellant] was to some extent under the influence of liquor, while appellee's doctor testified that he found nothing to indicate that appellee was under the influence of liquor or that he had drunk any liquor.

After the races were over appellant stayed to cash a ticket on the last race while the other boys went to the car. When appellant returned to the car no one noticed that he was under the influence of intoxicating liquor and they all got in the automobile and started home. Van Dusen and Register were in the front seat with appellant and appellee and Honold were in the back seat. While they were on a cut-off road that connects with Highway 270 appellant drove across a bridge and around a sharp curve at a speed so great that it prompted Register to ask him to slow down. Soon after they reached Highway 270 appellant drove off onto the shoulder of the highway almost hitting a mailbox, and appellee and Register protested that appellant was driving too fast and asked him to slow down. Further down the highway appellant approached a curve and Register again reminded him to be careful because he (Register) had turned over there once before. As appellant approached the curve he passed a car going in the same direction while a truck was coming in the opposite direction, and appellant in an apparent attempt to avoid a collision ran onto the gravel shoulder of the highway causing the car to skid and turn over, injuring appellee seriously and injuring some of the other boys slightly. Appellee testified that he warned appellant about his fast driving and asked him to slow down more than once but the other boys remembered appellee giving such warning one time only.

Points relied on by appellant. Appellant sets out serveral separate grounds on which he relies for a reversal, but we deem it necessary to discuss at length only three of the assigned grounds, to-wit: (a) The refusal of the trial court to direct a verdict in his favor; (b) Giving appellee's requested Instruction No. 4, and; (c) The refusal of the trial court to set aside the verdict.

(a) At the conclusion of all of the testimony appellant requested the trial court to instruct the jury to return a verdict in his favor, but the court refused to do so. The reason assigned by appellant for asking for an instructed verdict is that 'the undisputed evidence shows appellee guilty of negligence in drinking with appellant and riding with him in his condition'. This reason and this contention cannot be sustained. In effect this was a plea by appellant of contributory negligence on the part of appellee, yet this very question was, by proper instructions, submitted to and passed on by the jury. The testimony in this case did not jutify the court in holding as a matter of law that appellee was guilty of contributory negligence. The jury was justified in finding that appellee did not know when he entered the car to return to Malvern that appellant was under the influence of liquor. Also it is undisputed that appellee protested one or more times against the manner in which appellant was driving, and that there were other protests--all apparently unheeded by appellant.

Appellant cites Sparks v. Chitwood Motor Company, 192 Ark. 743, 94 S.W.2d 359, and Lewis v. Chitwood Motor Company, 196 Ark. 86, 115 S.W.2d 1072, where verdicts were directed for the defendants, and he states that they directly govern this case. The facts in both cited cases were very similar but they are readily distinguishable from the facts in this case, as a few excerpts from the opinion in the Sparks case will demonstrate. In speaking of the testimony we said [192 Ark. 743, 94 S.W.2d 361]: 'There was some conflict in the testimony, but all of the testimony shows that they were all drinking, and the preponderance of the testimony shows that they were all drunk.' Again it was pointed out 'appellant was bound to know all about it; he knew that Miller was drunk and careless, and, according to all of the evidence, acquiesced in it, and made no protest.' It was also said: 'Of course the guest might not be guilty of negligence simply because he failed to protest. If the occupant of the automobile did what a person of ordinary prudence would have done under the circumstances, he was not guilty of contributory negligence'. In the Lewis case, supra [196 Ark. 86, 115 S.W.2d 1074], it was recognized that before the plaintiff would be barred from recovery he must know, or by the exercise of ordinary care should know, 'that the driver was intoxicated or under the influence of liquor to such an extent as to make him a careless or incompetent driver'. Under the evidence in the case under consideration it was for the jury and not the court to decide the extent of appellee's knowledge concerning the appellant's condition as well as his opportunity for such knowledge.

Appellant cites Wilson v. Holloway, 212 Ark. 878, 208 S.W.2d 178, to sustain his assertion that the negligence of appellant should be imputed to appellee. The cited case is not in point because there the occupants of the car were on a joint enterprise and damages were sought against a third party and not against the driver of the car in which they were occupants.

Associated with above contention is the further argument that 'the evidence was insufficient to prove willful and...