Wright v. Covey
| Decision Date | 11 September 1961 |
| Docket Number | No. 5-2402,5-2402 |
| Parties | , 90 A.L.R.2d 1033 C. F. WRIGHT et al., Appellants, v. Nicholas Ira COVEY, Appellee. |
| Court | Arkansas Supreme Court |
Mahony & Yocum, El Dorado, for appellant.
F. C. Crow, Hope, George F. Edwardes and Shaver, Tackett & Jones, Texarkana, for appellee.
This action was brought by the appellee Covey to recover for personal injuries and property damage sustained by him when his car ran into the rear end of a stalled tractor-trailer combination that was owned by the appellant Wright and was being driven by Wright's employee, the appellant Hildebrand. The jury returned a verdict fixing Covey's total damages at $25,000 and attributing 25 per cent of the negligence to Covey and 75 per cent to Hildebrand. In appealing from the ensuing judgment for $18,750 the defendants question a number of the court's instructions to the jury and also complain of the size of the verdict.
The accident happened at about eight o'clock on a dark snowy night in February, 1960. The defendant Hildebrand had been driving east upon a two-lane paved highway in Lafayette county when, as a result of what the jury may have found to have been carelessness on his part, he ran out of gasoline. Before his rig came to a standstill he managed to drive it as far off the highway as he could without running into a ditch along the righthand side of the road. The record does not support the appellants' contention that the tractor and trailer were almost entirely off the pavement. There is an abundance of testimony, including that of Hildebrand himself, to show that the rig stopped parallel to the highway and about half on and half off the pavement.
A few minutes elapsed before the stalled vehicle was struck from behind by Covey's car. Hildebrand, after coming to a stop, first asked a passing motorist to send help from the next town. Then, in order to borrow a flashlight, Hildebrand flagged down a lumber truck that was coming from the opposite direction (the east) and was being driven by Samuel Barney. There is a dispute about where Barney's truck was standing at the time of the accident. Barney says that he originally stopped about 50 feet west of Hildebrand's rig, but he backed up 150 feet or more before alighting and handing a flashlight to Hildebrand. Covey testified, and the jury may have believed, that when the collision occurred the lumber truck was west of the tractor-trailer; a distance of twenty-five feet is mentioned.
Barney testified that when he saw the Covey car approaching he warned Hidebrand that 'it looks like he is not going to stop.' Barney then jumped on his own running board and blinked his headlights repeatedly in an effort to warn Covey of the danger. Covery testified that he saw the lights of the lumber truck and assumed that it was in motion 'until I got right up at it.' Covey said that after passing the lumber truck he had about a tenth of a second to see the tractor-trailer blocking his path; he was unable to avoid the collision. Covey's statement that the tractor-trailer had no lights burning is disputed by witnesses for the defendants.
I. The court submitted the case to the jury upon four special interrogatories which required the jury to determine (a) whether Hildebrand was negligent, (b) whether Covey was negligent, (c) the percentage of negligence attributable to each, and (d) Covey's total damages. By one of the court's general instructions the jury were told that the plaintiff's contributory negligence The defendants objected to this instruction 'for the reason that the jury is not concerned with, and should not be informed of, the effect that an answer to an instruction may have.' This is the first point urged for reversal.
The appellants rely upon the rule, often announced in other jurisdictions, which prohibits a trial court, in submitting a case upon special interrogatories, from informing the jury of the effect that their answers may have upon the ultimate liability of the parties. Mitchell v. Perkins, 334 Mich. 192, 54 N.W.2d 293; Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S.W.2d 482; Anderson v. Seelow, 224 Wis. 230, 271 N.W. 844. The reason for the rule is that the special interrogatories are intended to elicit the jury's unbiased judgment upon the issues of fact, and this purpose might be frustrated if the jurors are in a position to frame their answers with a conscious desire to aid one side or the other.
In the case at bar the court merely told the jury that contributory negligence is not a bar to recovery if it is of less degree than the defendant's negligence and that the plaintiff's recovery would be diminished in proportion to his contributory negligence. We do not think that the rather general language of this instruction, needless though it may have been, had the effect of telling the jurors anything which they as intelligent men might not have deduced from the wording of the special interrogatories. The jurors certainly realized that the court had a positive reason for requiring them to determine the percentage of the total negligence attributable to each of the drivers. That reason could only have been that the final judgment would be affected by the jurors' apportionment of fault. We are confident that the jury's action in attributing three fourths of the blame of Hildebrand represents their unbiased conclusion from the testimony rather than a deliberate attempt to arrive at a preconceived result.
The point has caused us much anxiety, but we think the case falls within the principle announced in such cases as Fort Worth & D. C. Ry. Co. v. Kiel, Tex.Civ.App., 195 S.W.2d 405, 409:
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