Spence v. Vaught, 5-2958

• Decision Date: 29 April 1963
• Docket Number: No. 5-2958,5-2958
• Citation: 236 Ark. 509,367 S.W.2d 238
• Parties: Lucy SPENCE, Appellant, v. DeWitt VAUGHT et ux., Appellees.
• Court: Arkansas Supreme Court

Page 238

367 S.W.2d 238

236 Ark. 509

Lucy SPENCE, Appellant, v. DeWitt VAUGHT et ux., Appellees.

No. 5-2958.

Supreme Court of Arkansas.

April 29, 1963.

Rehearing Denied May 27, 1963.

Barber, Henry, Thurman & McCaskill, Little Rock, for appellant.

Mehaffy, Smith, Williams, Friday & Bowen, Little Rock, for appellees.

JOHNSON, Justice.

This case involves the Arkansas guest statutes, Ark. Stats. §§ 75-913-75-915. The action was instituted by appellees DeWitt Vaught and Georgia Vaught, his wife, against appellant Lucy Spence for damages resulting from an automobile accident occurring on February 11, 1962. Appellant and appellee Mrs. Vaught had attended Sunday school and church at Houston, Arkansas, although they lived in Perryville. Mrs. Vaught had gone to Houston with her daughter, who left early. Mrs. Vaught asked appellant, who is Mr. Vaught's aunt, for a ride back to Perryville. About two miles out of Houston the automobile veered to the right off the road and into a ditch. The automobile turned over, injuring appellee severely.

Trial of the case before a jury resulted in a verdict in favor of appellees. For reversal of the judgment on the verdict, appellant contends that there is no evidence of wilful and wanton misconduct on the part of the appellant and a verdict for the appellant should have been directed by the trial court.

The Arkansas guest statute referred to above, Ark.Stats. § 75-913, reads as follows:

'No person transported as a guest in any automotive vehicle upon the public highways or in aircraft being flown in the air, or while upon the ground, shall have a cause of action against the owner or operator of such vehicle, or aircraft, for damage on account of any injury, death or loss occasioned by the operation of such automotive vehicle or aircraft unless such vehicle or aircraft was wilfully and wantonly operated in disregard of the rights of others.'

The operative portion of § 75-915 is as follows:

'No person transported or proposed to be transported by the owner or operator of a motor vehicle as a guest, without payment for such transportation, nor the husband, widow, executors, administrators or next of kin of such person, shall have a cause of action for damages against such owner or operator, or other persons responsible for the operation of such car, for personal injury, including death resulting therefrom, by persons while in, entering, or leaving such motor vehicle, unless such injury shall have been caused by the wilful misconduct of such owner or operator.'

Each personal injury case involving the guest statutes must be examined on its own. As we said in Harkrider v. Cox, 230 Ark. 155, 321 S.W.2d 226,

'[I]t is a question in each case whether the particular facts therein made a jury question as to wilful and wanton negligence.

'* * * In McAllister, Administrator v. Calhoun, 212 Ark. 17, 205 S.W.2d 40, 42, we quoted with approval from Splawn, Administratrix v. Wright, 198 Ark. 197, 128 S.W.2d 248: 'Whether an automobile is being operated in such a manner as to amoun to wanton and willful conduct is disregard of the rights of others must be determined by the facts and circumstances of each individual case.''

The evidence presented in the case at bar is, naturally, controverted. According to Mrs. Vaught's testimony, the car had begun to make a singing noise, then a grinding noise, and then a swerve lasting over some period of time, with Mrs. Vaught making warnings to appellant to slow down to see what the trouble was, and with appellant ignoring her warnings. According to appellant, the accident happened very quickly, with there being a sudden swerve and the car veering into the ditch, and at no time were there any warnings from Mrs. Vaught. Appellee Vaught and another witness testified that there was a rim cut on the highway and rubber marks about 3/10ths of a mile or more long leading up to the rim cut. Appellant's husband testified to a gouge or cut in the highway made by a tire rim about 15 or 20 feet from where the car ended up, but would swear to no other marks. Mrs. Vaught testified appellant was driving 50 to 60 miles per hour and did not slow up. Appellant testified that her speed was 45 to 50, that the accident was instantaneous and that she never could find the tire or wheel marks.

Appellant moved for a directed verdict at the close of appellees' testimony, which was overruled. The criterion for trial courts in considering motions for directed verdicts is well-stated in Smith v. McEachin, 186 Ark. 1132, 57 S.W.2d 1043:

'It is a rule of universal application that, where the testimony is undisputed and from it all reasonable minds must draw the same conclusion of fact, it is the duty of the court to declare as a matter of law the conclusion to be reached, but, where there is any substantial evidence to support the verdict, the question must be submitted to the jury. In testing whether or not there is any substantial evidence in a given case, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the verdict is directed, and, if there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict.'

Examining the record to determine 'the state of the evidence', it is relevant to review the types of negligence and their standards for determination. Negligence is the failure to use ordinary care. Johnson v. Coleman, 179 Ark. 1087, 20 S.W.2d 186. Gross negligence is the failure to use even slight care. Memphis & L. R. R. R. v. Sanders, 43 Ark. 225. Wilful negligence is the same as gross negligence with the added factor that the actor knows, or the situation is so extremely dangerous that he should know, that his act or failure to act will probably cause harm. Scott v. Shairrick, 225 Ark. 59, 279 S.W.2d 39.

Applying these standards to the situation as testified to by appellee, it is not illogical to conclude that appellant was negligent when she failed to slow down after the car started humming; she was grossly negligent when she failed to slow down after the car began swerving; and she was wilfully or wantonly negligent in failing to slow down after the grinding noise started, the car swerved more violently, she was twice warned to slow down, and she still continued to drive at the same speed of about fifty miles per hour. Viewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the party against whom the directed verdict was sought, we find that fair-minded men might draw different conclusions therefrom, and that therefore the trial court did not err in failing to direct a verdict for appellant.

Appellant's remaining point urged for reversal is that the giving of plaintiffs' (appellees') instruction No. 5 constituted prejudicial error.

Plaintiffs' requested instruction No. 5 reads as follows:

'The plaintiffs have alleged that the defendant was negligent in one or more of the following respects:

'(2) failing to keep her vehicle under proper control and

'(3) in operating the automobile at a speed in excess of that which was reasonable and prudent under the circumstances then existing.

'You are instructed that under the laws of the State of Arkansas it was the duty of the defendant, Lucy Spence, to exercise ordinary care in the operation of her vehicle to avoid injury to others, and that a failure on her part to exercise such care would be evidence of negligence. Ordinary care requires every person who operates a motor vehicle upon a public highway to keep his or her vehicle under such control as will enable him or her to check its speed, or...