32 S.W.2d 633 | Ark. | 1930
Appellees sued appellant in three separate actions for damages resulting from a crossing accident in the city of Russellville — the Browns for personal injuries, and the Buerkle Buick Company, for destruction of its Buick two-door sedan. The cases were consolidated for trial by consent which resulted in verdicts and judgments for appellees as follows: For Buerkle Buick Company, $487.50; for George J. Brown, the driver of the car, $675; and for Jim or J. G. Brown, $100.
1. The first assignment of error is that the court erred in giving instruction No. 3 on the measure of damages for the injury to the automobile of the Buerkle Buick Company, as follows: "Gentlemen of the jury, you are instructed that in arriving at the amount due the plaintiff Buerkle Buick Company that you will take into consideration the cost of the car to the plaintiff and the amount that the car is reasonably worth to the plaintiff, and you may find for him in any sum you find the car to be worth, not exceeding the amount sued for." It is said this instruction is too indefinite and uncertain to furnish a correct guide to the jury as to the measure of damages to the automobile, and the case of K. C. S. Ry. Co. v. Biggs,
2. It is next urged that the court erred in part in giving instruction No. 1 on its own motion. This is a long instruction covering the three causes of action in respect to the comparative negligence statute. It correctly told the jury that if the driver of the car was guilty of contributory negligence, then Buerkle Buick Company could not recover anything for damages to its car. It then incorrectly told the jury if both the railroad company and the Browns were negligent, "than if the negligence of these two plaintiffs exceeded the negligence of the railroad company, then you would reduce the amount of your verdict, if you were to find they were entitled to recover, reduce it in proportion to the negligence of the plaintiffs as shown by the testimony in comparison with the negligence of the railroad company." Of course that is not a correct statement of the law and refutes itself. But the court, in the same instruction, correctly stated the law with reference to Jim Brown as follows: "So that, if you find him negligent on that act, why you would compare his negligence with that of the railroad company, if you found it negligent. If his negligence was equal to the railroad company or exceeded it, find a verdict against him. If it was of less degree, find a verdict for him and reduce the amount of his recovery in proportion to the negligence of the railroad company and his negligence as compared." Again, immediately following the above quotation the court said: "The same rule applies to George Brown. If you were to find the railroad company negligent, then find George negligent, you would apply the same rule."
This instruction was based on 8575, C. M. Digest, commonly referred to as the comparative negligence *725
statute. It has been many times held by this court under this statute that contributory negligence is not a bar to an action against a railroad company, for a personal injury caused by the running of trains, unless the degree of the plaintiff's negligence is equal to or exceeds the negligence of the persons operating the trains. Davis v. Scott,
3. It is finally argued that the verdict is contrary to the evidence, that there is no substantial evidence to support it. We cannot agree. The evidence was in dispute. The testimony for appellees was sufficient to take the case to the jury, and we can see no useful purpose in reviewing it, as it would unduly extend this opinion. Suffice it to say the evidence was sufficient to support a verdict for either party.
Affirmed.