298 S.W. 1023 | Ark. | 1927
STATEMENT OF FACTS.
J. O. Smith sued W. A. Hodges to recover damages for injuries to his person and to his automobile occasioned, as alleged, through the negligence of Hodges in driving his automobile against the front wheel of the automobile in which Smith was riding.
According to the evidence for the plaintiff, on the 27th day of January, 1926, about four o'clock in the afternoon, while he was driving a 1922 model Ford truck northward along a public highway in White County, Arkansas, *103 he was overtaken by W. A. Hodges, driving a Dodge sedan, and, after the front wheels of the Dodge sedan had passed the truck, Hodges swerved to the right, and his car caught the front wheel of the truck and forced it over an embankment, throwing Smith out and severely injuring him. The son of Smith was riding in the car with him, and positively recognized W. A. Hodges as the man who was driving the Dodge sedan which ran into the Ford truck. Other witnesses near the scene of the accident testified that W. A. Hodges was the person who was driving the Dodge sedan which ran into the Ford truck driven by J. O. Smith. While Smith was crossing a bridge, Hodges blew his horn as a warning that he intended to pass Smith. He was driving at the rate of fifteen or twenty miles an hour, while Smith was not going over eight or ten miles an hour. Smith was driving along the right-hand side of the road, and there was .plenty of room for Hodges to have passed his car without running into it.
Hodges denied that he was the person who ran into the truck driven by Smith and turned it over the embankment on the side of the road on the day in question.
The jury returned the following verdict: "We, the jury, find for the plaintiff in the sum of $100 as actual damages to the truck, and the further sum of $25 for physical damage, and the further sum of $300 as punitive damages."
From the judgment rendered the defendant has duly prosecuted an appeal to this court.
(after stating the facts). It is first earnestly insisted that the judgment should be reversed because the court refused to grant the motion of the defendant for a continuance. According to the evidence for the plaintiff, the accident occurred about four o'clock in the afternoon on January 27, 1926, while he was driving northward in White County, Arkansas, towards Bald Knob. It was the theory of the defendant that on that *104
day his car, which was a Dodge sedan, was in a garage at Bald Knob which was operated by G. T. Henry. Bill Kent worked in the garage, and, in his motion for a continuance, the defendant set up that he could prove by Kent that, for several days before the alleged accident, he was the only mechanic that had worked on the defendant's car, and that the defendant's car was in the garage where he worked all day on the 27th day of January, 1926. The record shows that the defendant testified to this fact, if fact it was, and that he was corroborated by the testimony of the keeper of the garage. The complaint of the plaintiff alleges that the accident occurred on the 27th day of January, 1926, and this put the defendant on notice that he was charged with having negligently run into the plaintiff's car on that day north of a concrete bridge across Gin Creek, in White County, Arkansas, while said car of the plaintiff was traveling in a northerly direction. This put the defendant on notice of what he should prove as a defense to the action, and that, if he claimed he was not the person who overtook the plaintiff in an automobile and negligently ran into the car driven by the plaintiff, he could prove such fact by showing that he was at another place on that day. It could not be said that he could only prove his whereabouts by the owner of the garage and a mechanic working therein. It cannot be said that his defense to the action could only be established by showing that his car was in a garage in Bald Knob. He could have shown that he was not the person who ran into the plaintiff by establishing that he was at another place at the time the accident occurred. Hence the testimony of Kent was cumulative merely, and the court did not abuse its discretion in refusing to grant the defendant a continuance on account of the absence of Kent. Spear Mining Co. v. Shinn,
Again, it cannot be said that the defendant made a sufficient showing of diligence in the matter within the rule announced in Finley v. Clift,
The general rules governing the movement of automobiles, except as changed by statute, are the same as those which, as the result of long usage, regulate the movement of wagons and other vehicles of like kind. The record shows that the defendant was driving his car at a more rapid rate of speed than that of the Ford truck driven by the plaintiff. It was the duty of the plaintiff to yield room enough for the defendant to pass him when the latter blew his horn and gave him warning that he was about to do so. According to the evidence of the plaintiff, be was on the right-hand side of the road, going north, and there was plenty of room on the highway for the defendant to pass his car on the left. It was the duty of the defendant, in overtaking and attempting to pass the plaintiff, to exercise ordinary care and skill in doing so. Under the evidence disclosed by the record, the jury might have found that the defendant, after the front wheels of his car had passed the front *106
of the plaintiff's car, swerved suddenly to the right, intending to return to the right-hand side of the road, without warning the plaintiff, and that he negligently ran his car into the front wheel of the plaintiff's car and thereby caused the injuries complained of. Wells v. Shepard,
It is earnestly insisted, however, by counsel for the defendant, that the court erred in submitting to the jury the question of punitive damages, and in this contention we think counsel are correct. In St. L. S.W. Ry. Co. v. Owings,
This error can be eliminated. The verdict of the jury found specifically the amount that should be awarded to the plaintiff for his own personal injuries and for the injury to his automobile. It then found a separate amount to be awarded the plaintiff as punitive damages. The error can be cured by rendering judgment in favor of the plaintiff for the compensatory damages, which amount to $125. Inasmuch as the punitive damages are for a substantial amount, and this is a law case, the cost of the appeal must be awarded to the defendant. America Soda Fountain Co. v. Battle,
It follows that the judgment will be reduced to the sum of $125, and judgment will be rendered here in favor of the plaintiff against the defendant for that amount, and the defendant will be awarded the costs of the appeal against the plaintiff. It is so ordered.