Vanlandingham v. Gartman

Decision Date29 April 1963
Docket NumberNo. 5-2957,5-2957
Citation367 S.W.2d 111,236 Ark. 504
PartiesHarold VANLANDINGHAM, Appellant, v. Mildred GARTMAN, Appellee.
CourtArkansas Supreme Court

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

Joe W. McCoy, Malvern, for appellee.

ROBINSON, Justice.

Appellee, Mildred Gartman, was sitting in her automobile which was properly parked in front of her home in Sheridan, Arkansas, when appellant, Harold Vanlandingham, drove his car into the back of the Gartman automobile. Mrs. Gartman was seriously injured. She filed this suit against Vanlandingham. He defended on the theory that he ran into the Gartman car in order to avoid striking a little girl that ran across the road in front of him. He was drinking at the time, and there was evidence to the effect that there was no little girl involved. The plaintiff recovered a judgment in the sum of $20,000.00. Vanlandingham has appealed.

There are two issues: First, appellant contends that the court made a reversible error in refusing to give his Instruction No. 2, as follows: 'If you believe from the evidence that the sole, direct and proximate cause of the injuries, if any, of Mildred Gartman was some act or omission or conduct on the part of some third party, then it would be your duty to return your verdict in favor of the defendant, Harold Vanlandingham.'

While Instruction No. 2 may be a correct statement of the law, appellant was in no way prejudiced by the court's refusal to give it in view of other instructions given at appellant's request. Appellant's requested Instruction No. 4 given by the court is as follows: 'Under the law no one is legally liable to another for damages caused by an unavoidable mishap.

'If you find and believe from the evidence in this case that insofar as Harold Vanlandingham was concerned, the mishap was an unavoidable one and was not the result of negligence on his part, then your verdict will be in favor of the defendant.'

The court also gave appellant's Instruction No. 5, as follows: 'When the driver of an automobile is suddenly confronted with an emergency not created by his own negligence, he is not held to the same accuracy of judgment as is required of him under ordinary circumstances.

'If, therefore, you find that Harold Vanlandingham was suddenly confronted with an emergency not created by any negligence on his part, then you will test his conduct by what a reasonably prudent person might have done under the same or similar circumstances, and if you find that he made a choice of conduct such as a reasonably prudent person might have made under those circumstances, then he would not be guilty of negligence, even though it might afterwards appear that it would have been wiser or better for him to have chosen a different course of conduct.'

Jurors are presumed to be intelligent people. They must have understood from the instructions given that appellee could not recover if her injuries were caused solely by some third person. The court is not required to give repetitious instructions. Little Rock Railway & Electric Co. v. Green, 78 Ark. 129, 93 S.W. 752; Nuckols v. Flynn, 228 Ark. 1106, 312 S.W.2d 444.

The next issue is whether the trial court erred in permitting attorney for plaintiff, appellee, to use a chart he had prepared to illustrate his argument to the jury on the question of damages, particularly damages for pain and suffering. There was evidence that appellee had suffered and would continue to suffer considerable pain. She had asked for a judgment in the sum of $25,000.00. In arguing the amount of damages that should be awarded for pain and suffering, appellee's attorney illustrated his argument with a chart showing that she had already suffered 521 days, and further, if this item was computed at the rate of $12 per day it would amount to $6,144.00. He further illustrated on the chart that since appellee had a life expectancy of 34 years, if allowed $0.50 per day for future suffering, if would amount to $6,205.00. The trial court overruled appellant's objection to the use of the chart.

In a matter of this kind the trial court must exercise a sound discretion. If the chart was used in a manner to make it appear to the jury that evidence had been introduced to the effect that appellee's pain and suffering was worth $12 per day and in the future would be worth $0.50 per day, it would be error to permit the use of the chart because, of course, no such evidence was introduced; but where, as here, it is perfectly clear that the figures on the chart or blackboard were nothing more than argument by counsel, we cannot say there was an abuse of discretion by the trial court in permitting its use. In John A. Westlund, Inc. v. O'Bryan Construction Co., Inc., 123 Vt. 301,...

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12 cases
  • Beagle v. Vasold
    • United States
    • California Supreme Court
    • August 31, 1966
    ...Co. (5th Cir. 1966) 365 F.2d 858; Atlantic Coast Line Railroad Co. v. Kines (1963) 276 Ala. 253, 160 So.2d 869; Vanlandingham v. Gartman (1963) 236 Ark. 504, 367 S.W.2d 111; Newbury v. Vogel (1963) 151 Colo. 520, 379 P.2d 811; Evening Star Newspaper Co. v. Gray (D.C.Mun.App.1962) 179 A.2d 3......
  • Johnson v. Colglazier
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 10, 1965
    ...604, 106 N.W.2d 274, 86 A.L.R.2d 227. 8Alabama: McLaney v. Turner, 1958, 267 Ala. 588, 104 So.2d 315; Arkansas: Vanlandingham v. Gartman, 1963, 236 Ark. 504, 367 S.W.2d 111; California: Seffert v. Los Angeles Transit Lines, 1961, 56 Cal.2d 498, 15 Cal. Rptr. 161, 364 P.2d 337; Colorado: New......
  • Baron Tube Co. v. Transport Insurance Co.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 3, 1966
    ...Co. v. Kines, 1964, 276 Ala. 253, 160 So.2d 869; McLaney v. Turner, 1958, 267 Ala. 588, 104 So.2d 315. Arkansas: Vanlandingham v. Gartman, 1963, 236 Ark. 504, 367 S.W.2d 111. Colorado: Newbury v. Vogel, 1963, 151 Colo. 520, 379 P.2d 811. District of Columbia: Evening Star Newspaper Company ......
  • Worsley v. Corcelli
    • United States
    • Rhode Island Supreme Court
    • August 25, 1977
    ...3 Ohio St.2d 96, 209 N.E.2d 442 (1965); Vogel v. Fetter Livestock Co., 144 Mont. 127, 394 P.2d 766 (1964); Vanlandingham v. Gartman, 236 Ark. 504, 367 S.W.2d 111 (1963); Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811 (1963); Evening Star Newspaper Co. v. Gray, 179 A.2d 377 (D.C.Mun.App.1962)......
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8 books & journal articles
  • Handling Evidentiary Issues
    • United States
    • James Publishing Practical Law Books Archive Proving Damages to the Jury - 2013 Contents
    • August 13, 2013
    ...instruction. These jurisdictions include: • Alaska, Beaulieu v. Elliott , 434 P.2d 665, 676 (1967). • Arkansas, Vanlandingham v. Gartman , 236 Ark. 504, 508-09 (1963). • California, Beagle v. Vasold , 65 Ca.2d 166, 173-81 (1966). • Georgia, Hardwick v. Price , 114 Ga.App. 817, 820 (Ga.Ct.Ap......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive Proving Damages to the Jury - 2020 Part 5: How to handle unique issues in damage cases
    • August 5, 2020
    ...Cir. 1986), §§9:60, 9:63 V Van Houten-Maynard v. ANR Pipeline Co., 1995 WL 317056 (N.D. Ill. 1995), §11:95 Vanlandingham v. Gartman , 236 Ark. 504, 508-09 (1963), §9:05 Vasina v. Grumman Corp ., 644 F.2d 112, 118 (2d Cir. 1981), §23:22 Verni ex rel. Burstein v. Harry M. Stevens, Inc ., 387 ......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Proving Damages to the Jury - 2016 Part 5: How to Handle Unique Issues in Damage Cases
    • August 13, 2016
    ...Cir. 1986), §§9:60, 9:63 V Van Houten-Maynard v. ANR Pipeline Co., 1995 WL 317056 (N.D. Ill. 1995), §11:95 Vanlandingham v. Gartman , 236 Ark. 504, 508-09 (1963), §9:05 Vasina v. Grumman Corp ., 644 F.2d 112, 118 (2d Cir. 1981), §23:22 Verni ex rel. Burstein v. Harry M. Stevens, Inc ., 387 ......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Proving Damages to the Jury Part 5
    • May 4, 2022
    ...Cir. 1986), §§9:60, 9:63 V Van Houten-Maynard v. ANR Pipeline Co., 1995 WL 317056 (N.D. Ill. 1995), §11:95 Vanlandingham v. Gartman , 236 Ark. 504, 508-09 (1963), §9:05 Vogler v. Blackmore , 352 F.3d 150, 155-156 (5th Cir. 2003), §7:10 Vulcan Materials Co. v. Driltech, Inc. , 251 Ga. 383, 3......
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