Hearn v. East Texas Motor Freight Lines
241 S.W.2d 259
Ark.
1951
Check Treatment

HEARN v. EAST TEXAS MOTOR FREIGHT LINES.

4-9421

Supreme Court of Arkansas

July 9, 1951

241 S. W. 2d 259

surface pipe. Bennett let Howard have a drilling rig; and the question was as to the extent of the lien of the material supplier, Weis. We held that Weis had no lien on Bennett‘s rig; but we sustained the lien of Weis, the supplier, “as to the surface pipe and the lease.” In short, we held that the lease and pipe of Thompson, the leaseholder, were subject to the lien of the supplier. Under the authority of that case the pipe on the drill site6 and also the lease of Superior (the leaseholder in the case at bar) were properly subjected to the lien of Etheridge.

Affirmed.

ROBINSON, J., dissents.

Opinion delivered July 9, 1951.

Ted McCastlain and Fletcher Long, for appellant.

Wright, Harrison, Lindsey & Upton and Alston Jennings, for appellee.

GRIFFIN SMITH, JR., Special Justice. Appeal is from a judgment based on the verdict of a jury denying R. A. Hearn recovery from East Texas Motor Freight Lines for claimed personal injury.

A collision in Brinkley involved appellant‘s truck with a tractor-trailer unit operated by appellee. Appellant charged negligence, appellee contributory negligence. The issue: whether appellee‘s Instruction 5, in omitting a portion of the definition of contributory negligence, misled the jury so that error resulted.

The challenged instruction set forth § 75-623, Ark. Stats., (requiring drivers to stop before entering a through highway intersection). It then told the jury that,

“Violation of this or any other statute, if you find any violation, is evidence of negligence which you shall consider along with all of the facts and circumstances of the case, as revealed by the evidence, in determining whether either party was negligent, and if you find that the plaintiff was guilty of any negligence, however slight, your verdict must be for the defendant.”

Appellant contends that the italicized portion is fatally defective because it omits an element essential to proper statement of the rule of contributory negligence—that to defeat recovery claimant‘s negligence must have caused or contributed, in some degree, to his own injury.

This instruction, reasons appellant, is binding because it concludes with the phrase “your verdict must be for the defendant,” and is erroneous because it re-quired the jury to find for appellee if any negligence on the part of appellant was shown, irrespective of whether such negligence caused or contributed to appellant‘s injury.

Appellee insists that there was no misconception of the law because a previous instruction, separated from appellee‘s instruction 5 only by a statement as to burden of proof, correctly defined contributory negligence as that which “caused or contributed to (appellant‘s) damage or injury“; and because the instruction immediately following instruction 5 reiterated that a verdict for appellee was required if it was found that “R. A. Hearn failed to exercise ordinary care, as defined in this instruction, or other instructions, and that such failure, if any, caused or contributed to his injuries, * * *”

The concluding phrase “you will find for the plaintiff” or “you will find for the defendant” is the mark of a binding instruction.

; and where a binding instruction is given which ignores an essential issue on which evidence conflicts, reversible error is committed, even though a separate instruction correctly defines such issue.
.

The rule has been applied where an instruction purports to recite conditions under which recovery should be granted or denied, but requires the jury to find for a particular party without mention of such controverted affirmative defenses as assumption of risk (

), contributory negligence (
), adverse possession (
), and others.

The purpose of instructions is to inform the jury of the legal principles applicable to the facts presented, and furnish a guide to assist in reaching a verdict. They are ordinarily read to the jury with continuity and unless contradictory as a matter of law must be considered as a whole. If, when so considered, the legal issues presented are properly explained, no prejudice results.

.

Tested by this standard, the present charge is sufficient. Contributory negligence was succintly defined in a previous instruction. After digressing from this particular definition only momentarily, and without material deviation from the related issues, the court gave instruction 5. This was followed immediately by further admonition which defined ordinary care and connected it with the facts in issue.

It cannot be assumed that appellee‘s instruction 5 received special emphasis, either from its position with relation to the remaining instructions or because of its wording.

Not only do appellee‘s instructions take contributory negligence into account, but appellant‘s instruction 5 is likewise drawn so that the issue was not ignored. It stated the rule from a negative standpoint by binding the jury to find for appellant if it believed that injury resulted solely and proximately from appellee‘s negligence.

We conclude, therefore, that failure to fully redefine contributory negligence in appellee‘s instruction 5 was not error.

Affirmed.

ROBINSON, J., not participating.

GRIFFIN SMITH, Chief Justice, dissenting. This appeal was submitted February 26th. Mr. Justice ROBINSON announced that he would not participate in the determination. Result was that three of the Judges thought the judgment should be reversed and the cause remanded for a new trial, while three believed that the instruction complained of was distinguishable factually from cases controlling where binding directions had been given. The effect of a binding instruction was discussed in

. I concede that
is a closer case, but feel that any relaxation of the rule applicable to binding instructions should be preceded by notice to courts and attorneys.
. I therefore dissent.

McFADDIN, J. concurs in this dissent.

Notes

6
When we say “pipe on the drill site,” we do not refer to some casing that was never unloaded on the drill site. Pipe in transit and never on the drill site was not subject to the lien; but discussion of this becomes an immaterial matter because Superior executed a forthcoming bond when it intervened and also a supersedeas bond when it appealed; and the affirmance of Etheridge‘s lien—which we now do—as to the leasehold and pipe on the drilling site accompliance an affirmance within the provisions of the said bonds.