*1 Johnson. Shroeder v. 2d 570 352 W.S.
5-2541 January Opinion 1962. delivered Byron appellant. G. Dobbs and Wood, J. Sam for Morgan Sexton & and Charles R. Thomas A. Garner, appellee. Pedron, for Associate Justice. This is Ward,
Paul Appellant, intersection George accident case. Shrоeder, driving secondary east on a road where inter- sected running number 45 north and south when his going car collided with an north automobile by appellees, driven one of the Arlene Johnson. The Johnson car was owned husband, her T. appellеes; appellees J. Billy Johnson, one of the Wayne Imogene Mary pas- Johnson and Johnson were sengers Appellees against in the car. filed suit damages, claiming negligent in failing yield way, failing keep in failing proper keep autоmobile under control resulting judgments lookout. There was a favor of in the amounts: Arlene Billy Wayne Johnson, $2,853.23; T. Johnson, J. $790.83; Mary $300.00; Johnson, $2,230.40. Johnson, appealed Appellant seeking a has to this Conrt assignments One, on two viz.: reversal based error, *2 in in its refusal tо direct a verdict conrt erred appellant testimony; all of the close of favor grant refusing mistrial to a the trial court erred Two, improper appellees by testi- on the introduction of based mony. points named in the order These will be discussed background. summarizing first the factual after Background happened on De- Facts. The accident City of cember about four miles south of the 17, 1960 artery principal Highway traffic Fort 45 is Smith. speed per hour at with a limit of 45 miles the intersеction appellees, frequently who involved. On this occasion they travelling Highway as travelled approached were north Appellant, and the intersection. the owner operator was Smith, at Fort of the Downtown Hotel secondary driving his car east on what to be a approached Highway three As he 45 there were road. indicating objects right stop sign, on his side: was One stop Highway that he should sign before entered he edge approximately of was feet wеst of the west pavement object Highway second was the telephone pole apparently on 45. The
two or three feet west object large sign. a rather advertis- The third was ing sign apparently approximately two feet west of the telephone pole. sign apparently about four or This was .paral- length hanging five feet in and feet in width, 11/2 (The secondary relative lel information with the road. objects, their locations sizes is taken from these appellees photographs introduced into evidence testimony case.) from oral in the they were It is the contention of (the legal per travelling approximately miles hour speed approached limit) and did as appellant’s аttempting not see or realize that car prevent a collision. in time to cross road entering before is upon contention disputed. He further this is not 45 and right up his he looked to before started contends approached aрproaching and then he no car and saw speed per and still hour, 45 at a of five miles upon highway; right, seeing car his he entered no High- center line of that after his had crossed the car car struck the front the front door of car. refusing triаl court
One. The was correct instruct a in favor because, verdict opinion, presented question testimony of fact negligence the part resolve. found think the and we record contains sub- support finding. stantial its evidence Appеllant’s testimony substantially as follows: pulled up I within four feet of the intersection *3 stopped passed, and waited until two or three cars had sight High- then I way and saw no looked other cars up per then I at about started five miles hour Highway going pеr to cross 45, than less 10 miles my hour; when the of middle car was across the center Highway coming line of I45, saw a car from the south away; about 150 feet then collision the occurred. Ger- aged riding trude Beers, who was testified that he about two minutes twо while passed going pulled cars south; that he then out into the consciously intersection; that she didn’t look to but see, Highway she believed 45 was clear at time. D. the James engineer, Mickle, civil was the other witness appellant. plat diagram He made a of the intersec- pavement tion. Highway He stated that 45 was feet 23 stop sign wide and the was about 20 feet west the west edge pavement. person of the He also stated that a stand- ing at coming the intersection could sеe car from the away. south a distance of 465 feet Arlene the Johnson, driver of car testi- Highway fied that she was familiar with 45 at the scene of the frequently accident since she drove over it on her way to work in Fort Smith; on this occasion she drove per 45 or 50 miles hour until she came to the caution sign per speed of 45 miles hour when she reduced her accordingly; approached when she the intersection she advertising sign appellant’s car the between
first saw appellant’s going stop sign; was car time and approached per slowly hour —as miles it five —about up gas; let when she and she on the intersection and saw 70 feet from the about stopping, nearing edge she without applied her then the cars horn, her and honked and brakes Imogene day sunny. Johnson, collided; the was clear and they when Arlene, with (about who was in the car testified the intersec- 465 feet south of came over tion) rise sign ap- appellant’s she saw car neаr they proaching were within and apply Arlene about feet of the intersection she noticed appellant proceeded the brakes and blow the horn, highway. onto the
From was a conflict the above there point. According appellant, the evidence on a vital stopped edge of two minutes within four feet of sight, then no he looked saw car highway. onto Arlene and John- drove stop sign they son said saw car near the edge Highway car 45, the about fеet west of the highway. moving entering the and didn’t before appellees’ testimony had to believe appellant, testimony which and disbelieve the *4 evidently are us there did this case. tending support the circumstances certain facts and judgmеnt. jury’s who was in the car Gertrude Beers appellant testimony the on not corroborate did point, the four feet of i. that he within e., vital highway if the looked for traffic. Also, were able see Arlene and believed intersection it had 20 feet from the car even when was appellant right have seen a to believe could highway actually look on car if south the he did words, intersection. In other within four feet of the right exer- a to conclude failed had highway stop or to either to close care, due cise imposed duty oncoming or both—a traffic, for look 4No. without Instruction the Court’s him under objection. following quo- In this we think connection, tation from Ness v. 201 Md. 93 A. 2d Males, applicable: statutory obligation yield “We have held imposed upon discharged driver, unfavored is not mere passage but extends to the entire across the favored highway, using through and that the favored driver required is not to slow down at an intersection bring his vehicle under such control toas be able to upon assumption stop, that an unfavored driver will duty.” fail in his Appellant’s
Two. contention that the trial court refusing grant por- erred in a mistrial is based on tion of set record out hereafter. While appellees’ questioned by attоrney on cross examination the occurred: BY MB. GABNEB:
‘‘ questions: you Q. Two Mr. have a Shroeder, do room in that hotel is called the ‘trick room’?
“A. No. get paid You every “Q. don’t for $2.00 date that’s kept in there?
“A. rent We as far rooms, as hotel man- agement is concerned. you keep your
“Q. Mr. Shroeder, do want to rap own information this sheet here. it in Just stick pocket. your give jury.” I don’t want to even it to the you Mr. insinuating Dobbs: if “Well, want to be might you put as well it in.” ‘‘ ’ ’ right,
Mr. Garner: All let him read it. *5 Mr. “No, Wood: let see it me what is.” presence jury, Then outside of following occurred: objection to make an "Now I want
Mr. Dobbs: plaintiff in this case to of counsel the insinuation ‘rap what a mistrial because ask for sheet’, about handwriting. produced something in own is he has except anybody purport anything about It to be doesn’t say.” what he to wants rap on Frankie Sue "That’s sheet Mr. Garner: ’’
Carter. ” ‘‘ ¶ made it Mr. Dobbs: Who "I of the official records. did, Mr. off Garner: this is the to woman he was married That’s the marriage.” compiled during of their the coursе record if he cross-examination, wants The Court: "On things, to I think it’s unfair these but ask about approach leave this innuendo it in the he did—to nobody it is.” knows what ’’ “ it
Mr. I ’ll then. withdraw Garner: I’ll have to instruct "And Court: disregard it.” ‘‘ ’’ right. all
Mr. That will be Garner: request a and save mistrial, Mr. Dobbs: "We still exceptions.” Thereupon gave the court admonition : just gentlemen, handed to
"Ladies and counsel rap piece paper it as a and referred to witness a paper is not offered evidence Now, sheet. duty you my instruct therеfore is counsel. disregard incompetent, you sheet it are having having produced any been made reference been reaching in this case.” decision Although a mistrial after did not ask for jury, we think has the admonition properly previously objection. As set out, saved his appel- jury, admonish the after court stated he would *6 449 request save mistrial, still lant said: “We repeat thing exceptions”. a futile been It would have given. The trial after the admonition the statement as to been misled not have court could position. granting repeatedly matter of held that the
haveWe denying within the discretion a mistrial lies Briley 193 941, Ark. S. W. White, 209 v. trial court. See Reports page Arkansas the Court of the At 943 2d 326. said: the trial court must
“Much latitude be handling in the absеnce and, matters of this kind, prejudice showing a manifest and discretion or of abuse complaining party, rights this court will judgment on account of the action of reverse [Cases cited.] court.” trial we held the exercise hand, the other have also
On Vaughan subject such discretion is review. See v. Hughes State, 154 State, 58 Ark. v. 353, 885; S. W. Ry. City 70; Ark. 243 S. W. Kansas Southern Co. Larsen, 195 Ark. and Kansas v. S. W. 2d City Ry. Murphy, 428. In v. 74 Ark. 85 W. So. Co. S. although last not reverse case, cited this Court did length, subject question trial did discuss court, applicable citing numerous and сommented on the cases, among governing doing, In other rules. so the Court, things, said: present
“There class of cases which is, however, prejudicial, argument flagrantly or coun- and remarks so persistent impropriety, may sel in their that the be so judge commendable efforts of the eradicate unavailing. event, evil effects of them will In such be preju- a new trial is the to remove the then, reprimanded, judge notwithstanding may have dice, positively offending attorney fined, or even disregard preju- emphatically instructed the dicial statements.” Vaughan supra, said:
In the the Court case, preju- any to us it occurs
“. . . whenever not hesi- likely ... we shall resulted most dice has that account.” reverse on tate to most situa- as in under consideration, In the case *7 certainty say that we сannot of this nature, tions “rap prejudiced by jurors the reference were not. Defi- that were are less sure but we sheet”, made was nitely the reference manner in which open field of improper, a broad to the and it left possibly sрeculation character as to not did of the court The admonition criminal record. “rap referred, sheet” and to whom what tell probably prejudice have would so the and if had done greater. been even court the trial our conclusion
It is therefore judgment granting and its a mistrial, in not erred accordingly remanded. the cause is reversed, and as to reversal. dissents J., McFaddin, dissenting. Justice, Associate McFaddin, F. Ed. I court- While dislike the to the reversal. I dissent as “rap I can nevertheless, sheet”, about the tactics room jury was say admonition Court’s modest verdicts to remove the harm. ineffectual strongly rather indicate received harm about remove the admonition did the Court’s judgments “rap affirm the I would Therefore, sheet”. herein. Pepper Co. v. DeFreece.
Dr. 352 W. 2d 579 S. 5-2512 January Opinion 1962. delivered