Simmons v. Frazier, 82-140
| Decision Date | 29 November 1982 |
| Docket Number | No. 82-140,82-140 |
| Citation | 277 Ark. 452,642 S.W.2d 314 |
| Parties | Leonard R. SIMMONS and Ralph Walker, Inc., Appellants, v. Dale FRAZIER, Appellee. |
| Court | Arkansas Supreme Court |
Frierson, Walker, Snellgrove & Laser, Jonesboro, for appellants.
Reid, Burge & Prevallet by Robert L. Coleman, Blytheville, for appellee.
This is an appeal from an award of $107,211.60 to Dale Frazier, the appellee, for personal injuries he suffered when he was run over by a tractor-trailer truck in Mississippi County, Arkansas. Leonard R. Simmons, the driver, and Ralph Walker, Inc., the owner of the truck, appeal arguing four errors were committed. Simmons died before the trial of natural causes. We affirm the judgment.
It is undisputed that Frazier was hitchhiking on Interstate Highway 55 in July of 1979. He was enroute from Montana to Meridian, Mississippi, where his parents lived. His last ride let him out at about 10:00 p.m. on July 3rd by a weigh station near Blytheville, Arkansas. Frazier sat down on the nine foot wide shoulder with his suitcase and duffle bag to await another ride; while there he fell asleep. At about 1:30 a.m., Simmons, the driver of the rig that hit Frazier, passed the exit to the weigh station by mistake. When Simmons recognized his error he pulled over to the side of the road and began to back the tractor-trailer rig back some six or seven hundred feet to the exit. As he was doing so, he ran over Frazier. Simmons immediately pulled the truck off Frazier. A state policeman testified that there was blood two feet and two inches from the edge of the traveled portion of the interstate and determined that had to be the point of impact. There was evidence the area was well lighted.
The damage to Frazier's left thigh was extensive. He suffered an avulsion, or tearing away, of the flesh. He was immediately taken to a hospital in Memphis where he remained for thirty-four days. A skin graft was taken from his right upper thigh and an attempt was made to fill the indentation made by the avulsion to his injured thigh.
The jury was given a series of instructions regarding the duties of pedestrians and drivers and it is argued that those instructions were contradictory and confusing. It is not argued that the instructions were inherently wrong but were wrong as applied to this case. First, the court gave AMI Civil 2d, 909:
Streets and highways are available for the use of both pedestrians and motorists. The driver of a motor vehicle must anticipate the presence of pedestrians on streets and highways, and use ordinary care to avoid injuring them. Pedestrians are required to anticipate the presence of motor vehicles and use ordinary care for their own safety.
Next, the court gave, at the appellants' request, an instruction based on AMI 903A which reads:
There was in effect in the state of Arkansas at the time of the occurrence, statutes which provide it is unlawful for any person on controlled access facilities to drive any vehicle except in the proper lane provided for that purpose and in the proper direction. There was in force in the state of Arkansas other statutes which provided, one, the definition of pedestrian is any person afoot; two, street or highway, the entire width between property lines of every way, place or whatever nature when any part thereof is open to the use of the public as a matter of right for purposes of vehicular traffic.
The definition of roadway, that portion of a highway improved, designed or ordinarily used for vehicular traffic.
Pedestrian soliciting rides. No person shall stand in a roadway for the purpose of soliciting a ride from the driver of any private vehicle.
A violation of these statutes, although not necessarily negligence, is evidence of negligence to be considered by you along with all the other facts and circumstances in this case.
The appellants argue that these two instructions are confusing because the first instruction tells the jury that a pedestrian has a right to use the highway, yet the second tells the jury that a pedestrian may not stand in a roadway to hitchhike. The appellants contend that AMI 909 should not have been given at all, because it is irreconcilable with AMI 903A. It is pointed out by the appellants on appeal--it was not brought out below--that the Arkansas Highway Commission has formulated a special rule which prohibits pedestrians from using a controlled access highway at all. That statement is contained in the Minute Order No. 64-144 of May 27, 1964, and reads:
... [I]t is hereby declared to be a policy of this Commission that the use of controlled access state highways in the state by parades, pedestrians, bicycles and other non-motorized traffic shall be prohibited. The Director of Highways is directed to erect official signs on the roadways where such regulations are applicable.
The problem with the appellants' argument is that they did not offer an instruction which...
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