111 Ark. 538 | Ark. | 1914
(after stating the facts). The court did not err in refusing to grant appellant’s prayer for an instruction telling the jury that, “If the plaintiff acted as a reasonably prudent person would have acted under the same circumstances, he was not guilty of contributory negligence. ’ ’ This prayer was fully covered by instructions which the court' gave on the issue of contributory negligence. This prayer did not set forth the particular facts and circumstances in evidence tending to show that appellant was not negligent. So, then, the prayer could not be properly designated as one for a specific instruction on the issue of contributory negligence. On the contrary, it was but a general prayer for an instruction on that subject.
The authorities upon which appellant relies, to the effect that it is error for a trial judge to refuse to give a specific instruction correctly and clearly applying the law to the facts in the case, even though the law is in a general way covered by the charge given, are not applicable.
If the appellant had requested an instruction in which his acts, as shown by the evidence, were specifically set forth, and the facts and circumstances detailed, and had he then requested the court to tell the jury that if they believed a reasonably prudent man would have acted the same way under the same circumstances, this would have been a specific prayer for instruction on the issue of contributory negligence. But tbe prayer as offered was no more specific than tbe instructions on tbe subject which tbe court gave.
Tbe court did not err in giving instruction No. 3. This instruction did not place tbe burden on tbe appellant to show tbat be was not guilty of contributory negligence. Tbe first part of tbe instruction correctly told tbe jury tbat tbe burden of proving tbe alleged negligent acts rendering appellees liable in damages was on tbe appellant, but there is nothing in tbe instruction which tells tbe jury tbat tbe plaintiff must show by a preponderance of the evidence tbat be was free from contributory negligence before be was entitled to recover.
In Jones v. Malvern Lumber Co., 58 Ark. 130, which appellant relies on, tbe erroneous prayer told tbe jury tbat in order to find for tbe plaintiff, they must be satisfied by a preponderance of the evidence * * * that tbe plaintiff was free from contributory negligence on bis part. Tbat part of tbe instruction challenged in tbe present case was not intended to place tbe burden upon tbe plaintiff to show tbat be was free from contributory negligence, and when fairly construed in connection with what precedes it in tbe same instruction, and in connection with tbe other instructions, we are of tbe opinion tbat tbe instruction was not calculated to confuse and mislead tbe jury. Tbe court only intended by tbat part of the instruction objected to, to tell tbe jury tbat if they found from tbe evidence, “tbat plaintiff, while in tbe exercise of ordinary care for bis own safety, rode bis horse into such dangerous place, causing him to be thrown from said horse, etc., tbat their verdict should be for tbe plaintiff.” This language did not undertake, and was not intended, to tell tbe jury tbat tbe burden was on tbe plaintiff to prove tbat be was free from contributory negligence. It was not on tbe burden of proof.
Tbe court told tbe jury in instruction No. 6 tbat, “Tbe duty to prove contributory negligence devolves upon tbe defendants, unless such facts sufficiently appear from the testimony on the part of plaintiff.” The law is well established that if contributory negligence is established by the evidence adduced on the part of the plaintiff, that it is not necessary then for the defendant, in order to prevent recovery, to further prove contributory negligence.
In Jones v. Malvern Lumber Co., supra, the court, through Mr. Justice Mansfield, said: “But the instruction quoted, by its terms places the burden upon the plaintiff, and requires him to prove by a preponderance of the evidence, not only the negligence charged in the complaint, but also as a further fact essential to his recovery, the absence of negligence on his part contributing to the injury. Such is the obvious import of the language used, and we are unable to find in the .rest of the charge a reason for believing that it was intended to have any other meaning. ’ ’ But, in the present case, the court clearly declares that the burden of proving contributory negligence was on the defendants, and that part of the instruction to which objection is made, when considered in connection with this portion of the charge, is certainly not in conflict with it, and should not be construed in that sense in the absence of language so clear and express as to make such construction imperative.
The objection which the appellant made to the instruction was general, and it was his duty, if he conceived the instruction to have the meaning for which he now contends, to have called the court’s attention to it by a specific objection. If the court’s attention had been thus directed to the language to which appellant objects, and appellant had requested the court to correct the instruction so as to conform to his views as now expressed, the court doubtless would have granted his request.
Finding no error, the judgment is affirmed.