Temple v. Walker

• Decision Date: 12 February 1917
• Docket Number: 167
• Citation: 192 S.W. 200,127 Ark. 279
• Parties: TEMPLE v. WALKER
• Court: Arkansas Supreme Court

192 S.W. 200

127 Ark. 279

TEMPLE v. WALKER

No. 167

Supreme Court of Arkansas

February 12, 1917

Appeal from Miller Circuit Court; Geo. R. Haynie, Judge; reversed.

Judgment reversed and cause remanded.

Webber & Webber, for appellant.

1. The court erred in giving the second instruction. It is abstract and assumes that the ordinance was violated and that appellant must go to the center of the street under all circumstances and at all hazards.

A violation of the ordinance would not per se constitute negligence. The question of negligence was for the jury. 90 Neb. 200; 41 L. R. A. (N. S.) 337; 66 N.W. 671; 109 Mich. 37; 63 L. R. A. 668, 670; 100 N.Y.S. 208; 103 Id. 578. Negligence is the gist of the action. Without it there can be no recovery.

This instruction put the burden on appellant to show that he actually went to the center of the street. It is in conflict with all the other instructions given at defendant's request, which correctly state the law. It is error to give conflicting instructions, and the giving of an erroneous one is not cured by a correct one where the two are conflicting. 79 Ark. 12; 83 Id. 202; 87 Id. 364; 88 Id. 550; 94 Id. 311; 99 Id. 387; 104 Id. 67.

2. The violation of an ordinance is not determinative of the question of negligence. Negligence must be proven as the proximate cause of the injury, and before one can be held liable, it must be shown that the injury was one a person of ordinary foresight and prudence would have anticipated. 66 Ark. 68; 69 Id. 402; 97 Id. 160.

3. The preponderance of the evidence is with the defendant and the verdict would have been for him, except for the error of the court.

John N Cook, for appellee.

1. Only a general objection was made to instruction No. 2. 87 Ark 396.

2. It is hypothetical and places the burden on appellee and clearly states the law applicable to the facts. 86 Ark. 553; 41 L. R A. (N. S.) 346.

3. Under the circumstances the verdict and judgment are right without reference to the instructions. 89 Ark. 154; 107 Id. 130; 92 Id. 490.

OPINION

SMITH, J.

Appellee recovered judgment against appellant to compensate an injury sustained by her as the result of a collision between a buggy in which she was riding, with an automobile driven by appellant.

No error prejudicial to appellant appears to have been committed except in the giving of an instruction numbered 2, which reads as follows:

"If you find from a preponderance of the evidence that the plaintiff was traveling south on the right side of Hazel Street, and that the defendant was traveling north on the right side of said Hazel Street, and that the defendant without going to the center of said Hazel Street, negligently turned his automobile west and attempted or started to turn on the left side of Fifth Street near the curb of the left corner of Fifth Street, and thereby struck and injured the plaintiff and that his failure to go to the center of said Hazel Street before attempting to turn into Fifth Street was the proximate cause of said injury, your verdict should be for the plaintiff."

There was introduced in evidence a traffic ordinance of the city of Texarkana, where the collision occurred, which reads as follows:

"Section 1. That the term vehicle as used in this ordinance shall include all buggies, wagons and things of like nature, automobiles, locomobiles, motor cycles and things of like nature.

"Section 2. That all persons driving or propelling vehicles upon the streets of this city shall drive on the right side of any and all streets as close to the curb as possible, and when intending to drive into any cross street, shall proceed to the center of such street before turning into same.

"Section 3. All drivers of vehicles on said streets who may desire to cross from one side to the other, shall drive to the intersection of any two streets before turning to reach such other side of the street. In passing a vehicle going in the same direction, all drivers shall pass to the left of such vehicle as nearly as possible to the center of the street.

"Section 4. All persons driving vehicles on streets congested or crowded with other vehicles and pedestrians, shall drive very slowly and if driving a motor vehicle, shall change to a lower gear and move very carefully, and, if necessary, come to a full stop to allow such vehicles and pedestrians to clear the way."

It will be observed that the instruction quoted required the observance of this traffic ordinance by imposing upon appellant the duty of going to the center of...