(аfter 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 cоntinuance. According to the evidence for the plaintiff, the accident occurred about four o’clock in the afternoon on January 27, 3926, while he was driving northward in White County, Arkansas, towards Bald Knob. It was the theory of the defendant that on that day his car, which was ia Dodge sedan, was in a garagе at Bald Knob which was operated by GL T. Henry.. Bill Kent worked in the garage, and, in his motion for a continuance, the defendant set up that he could prоve 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, iand 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 Grin Creek, in White County, Arkansas, while said car of the plaintiff was traveling in a northerly direction. This put the dеfendant on notice of what he should prove as a defense to the action, and that, if he claimed he was not the person who overtоok 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 wias at another place at the time- the accident occurred. Hence thе 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 thе 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 announcеd in Finley v. Glift,
The general rules governing the movement of automobiles, еxcept 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 thе 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, he was on the right-hand side of the road, going north, and there was plenty of room on the highway for the defendant to рass 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. Hndеr 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 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 plаintiff’s car and thereby caused the injuries complained of. Wells v. Shepard,
It is earnest^ insisted, however, by counsel for the defendant, that the court erred in submitting to the jury the question of punitive damages, аnd in this contention we .think counsel are correct. In St. L. S. W. Ry. Co. v. Owings,
This error сan 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 tо 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 fаvor 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. American Soda Fountain Co. v. Battle,
It follows that the judgment will be reduсed 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.