*1 no see courts to respect. it behooves course Of although at- an instance, used; are unfair tactics torney might his illustrate a chart or blackboard use place illustration argument, fair to not would be it at- at times seen could be where it making argument. If using his torney it in arguing day as the same would it all be see jury could day. the case all It used. unfair tactics were bar, case merely perfectly an chart that the clear made argument; evidence; that it was not
illustration specifically it to jury’s limited the view and the court actually making argument. his counsel was the time no error. findWe
Affirmed. Vaught. 5-2958 2d 238 S. W.
Opinion April 29, delivered 1963. May
[Rehearing 27, 1963.] denied *2 Henry, appellant. Barber, McCaskill, Thurman & for Mehaffy, Friday by Smith, Williams, Bowen, B. & Boyce appellee. Ben Allen Love, and R. for This case involves Associate Justice. Johnson, Jim - guest the Arkansas Ark. 75-913 75-915. statutes, §§ Stats. by appellees Vaught The action was instituted DeWitt Georgia Vaught, Lucy against appellant his wife, damages resulting for from an automobile acci- occurring February Appellant ap- dent on 11, 1962. pellee Vaught Sunday Mrs. had attended School although they church at Houston, Arkansas, lived in Perryville. Vaught gone Mrs. had to Houston with her daughter, early. Vaught appellant, who left Mrs. asked Vaught’s Perryville. who is Mr. aunt, for a back ride About two miles out of Houston the automobile veered right to off the road and into ditch. The automobile appellee severely. over, turned injuring Trial the case before a resulted in a verdict appellees. in favor of For reversal of the judgment on the verdict, contends there is evidence part ap- of wilful and wanton misconduct on the of pellant appelant for verdict should have been by directed the trial court. guest
The Arkansas statute referred to above, § Stats. reads as 75-913, follows: ‘‘ person transported any No aas in automotive upon public highways being- vehicle or in aircraft upon ground, flown air, while have a shall operator against such cause of action owner or any damage injury, vehicle, or on account of aircraft, operation death or loss occasioned of such auto- or aircraft unless such vehicle or aircraft vehicle motive wilfully operated disregard wantonly rights of others.” operative portion of 75-915is as follows: § person transported proposed
“No
trans-
to be
ported by
operator
the owner or
of a motor vehicle as
guest,
payment
transportation,
without
for such
nor the
husband,
kin
widow, executors, administrators
or next
person,
damages
of such
shall have a cause of action for
*3
against
operator,
persons respon-
such owner or
or other
operation
personal
sible for the
such
of
injury,
car,
including
resulting
by persons
death
therefrom,
while
entering,
leaving
in,
injury
such motor
such
vehicle, unless
by
shall
have been caused
the wilful misconduct
’’
operator.
of such owner or
personal
involving
Each
injury ease
statutes must be examined on its own. As
said in
we
Cox,
Harkrider v.
“ question [I] t particu- is a in each case whether the question lar facts therein made a jury as to wilful and negligence. .. . “In McAllister, Administrator Calhoun, v. quoted Ark. approval 17, 205 S. W. 2d 40, we with from Splawn, Wright, Administratrix v. 198 Ark. 197, 128 2d being operated W. 248: ‘Whether an is automobile in such a manner as to amount to wanton and wilful con- disregard rights duct in of others must be de- by termined the facts and circumstances of each individ- ” ual case.’ presented The evidence is, the case at bar natural- ly, According Vaught’s testimony, controverted. to Mrs. begun singing the car ing grind- had to amake noise, then a lasting period noise, and then a swerve over some Vaught making warnings appellant time, with Mrs. appellant slow down to see what the trouble was, and with appellant, According warnings. acci- ignoring her being very happened quickly, sudden there dent veering at no time ditch, and into the and the car swerve Vaught. Appellee any warnings from Mrs. there were a rim Vaught testified there and another witness highway about and rubber marks cut on 3/10ths Appellant’s leading up long rim cut. mile or more highway gouge made in the or cut testified to a husband from to 20 feet where rim about 15 a tire up, other marks. Mrs. swear but would ended Vaught 50 to 60 miles testified Appellant up. that her testified and did not slow hour accident was instantaneous that the was 45 or wheel marks. could find the tire that she never Appellant close at the moved for directed verdict appellees’ testimony, crit- which overruled. considering motions for directed erion for trial courts McEachin, verdicts is in Smith well-stated 2d 1043: 1132, 57 S. W.
“ application that, It is a rule of universal where testimony undisputed all minds is and from it reasonable duty it is fact, must draw same conclusion conclusion to as a matter of law the the court to declare be any substantial evidence there reached; but, where *4 support question must be submitted verdict, any testing or not there is sub- to the whether jury. given in a the evidence and all case, stantial evidence should be deducible therefrom reasonable inferences party against light most viewed favorable any conflict is and if there is directed, whom the verdict in the dispute evidence is not in evidence, where the might that fair-minded men draw but is in such state different conclusions it to direct therefrom, is error ’’ verdict. Examining “the the record to determine state negligence types relevant to review the evidence”, is Negligence is the standards for determination. and their ordinary Coleman, Johnson v. 179 care. failure Ark. use negligence failure is the 2d 186. Gross S. W. Memphis slight Sanders, L. R. R. R. v. to use even care. & negli gross negligence same as is the Ark. 225. Wilful knows, or gence actor factor the added know, dangerous extremely should that he situation is so probably harm. cause to act will act or failure that his 39. 2d 279 W. y. Shairrick, 225 Ark. Scott as testi- Applying to the situation these standards ap- illogical by appellee, to conclude it is not fied to pellant negligent after down when she failed to slow negligent humming; grossly the car started she began swerving; and after she failed to slow down failing wilfully wantonly negligent in to slow she was grinding the car swerved started, down noise violently, down, and more she was warned to slow twice speed still at the same of about she continued drive fifty Viewing and all reason- miles hour. the evidence light most able deducible therefrom in the inferences against party favorable to the whom the directed verdict sought, might we find that fair-minded men draw different therefrom, conclusions and that therefore the failing trial court did not err in to direct a verdict for appellant.
Appellant’s remaining point urged for reversal giving plaintiffs’ (appellees’) instruction No. 5 constituted error. prejudicial requested
Plaintiffs’ instruction No. 5 fol- reads as lows :
‘£ plaintiffs alleged have that the defendant was negligent following respects: in one or more of the
(2) failing keep proper her vehicle under control (3) operating the automobile in excess prudent of that which was reasonable and cir- existing. cumstances then
“You are instructed *5 under the laws of the State duty Lucy of it was the defendant, Arkansas of the Spence, ordinary operation to exercise care in the of her vehicle to avoid injury to and others, that failure on a part to her exercise such care would be of evidence every person requires Ordinary
negligence. who care keep highway upon public operates to a motor vehicle him will enable such control as his or her vehicle under absolutely, stop speed, if neces- it to check its or to or her danger apparent sary reason- or to avoid where injury ordinary by ably anticipated care. the exercise be duty exercise it was of the defendant Further, greater speed ordinary operate care her vehicle prudent circum- under the than was reasonable so be evidence of and that a failure to do would stances, negligence.
“You instructed that connection are further in speed at which the defendant’s lawful maximum place might operated time and been at the vehicle have speed which was accident involved was that of the here prudent but circumstances, under the reasonable any hour in should event, not to exceed miles you being operated find vehicle was defendant’s place involved at a time and of the accident here prudent which was reasonable under negligence to circumstances this would be be evidence along considered other in the ease.” circumstances Appellant forceably giving of this contends that the duty instruction error because refers ordinary being a statute care, and, exercise only confusion case, this instruction could lead to the probably jury caused to conclude ordinary duty under care exercise duty being guilty rather than to avoid wilful and wanton misconduct. only
A careful review of the record reveals that not negligence was wilful and wanton misconduct defined plaintiffs’ required in 1, 3, instructions No. No. No. 9 plaintiffs’ given and No. but also instruction No. immediately alleged instruction. In- erroneous No. 6 : reads as follows struction you preponderance “Now from a should find of the Lucy Spence, defendant, evidence negligence respects alleged one or more
515 negligence, you, without this plaintiff, as related just plaintiffs this maintain the entitle not more, would any. you damages, have As if their or to recover action, if at action, this recover in previously instructed, to been by preponderance the evi- prove plaintiffs a must all, wanton and of wilful was the defendant dence that only They prove that the defendant must conduct. had negligent, reason knew, also she but was negligence inflict about to was act of that her believe, in this course of conduct that she continued injury, consequences thereof, indifference with conscious a safety disregard rights exhibiting a of the others.” considered, thus we the instructions are all
When incorrectly say they presented the law, cannot thereby. Pinkerton v. have jury the could been misled 742. Davis, 212Ark. 207 W. 2d Affirmed. J., dissent. J.,C. George
Harris, Smith, Rose (dissenting). my In Justice Chief Harris, Carleton opinion, present greatly decision the court weakens Appellee, argu- Statutes. in effectiveness Guest ing affirmance of makes a in case, for statement her entirely agree. reviewing I a num- brief with which After under cases, Statutes, ber of decided the Guest she “This indicates a trend of the review also Court states, allowing guest go cases to toward more proof requirements than earlier liberal cases immediately passage the Guest the decided Certainly, I cannot verdict believe Statutes.” upheld appellee been would have under earlier de- cisions. Splawn Wright,
In 128 2d 248 S. W. 1939) (decided May young lady, riding a lady young young with another a man. The driver approximately operating the automobile gravel foggy, rainy road, hour on and on miles began night. making slide curve, guests telling him that he driver, remonstrated reached too fast. driver Later, *7 car, to lost adjust heater, down the he control go guest to to injured. and the was The case was allowed the but this court on basis that there jury, reversed the negli- was not evidence of and wanton sufficient wilful gence question. to make a In Jeffers, Edwards v. Ark. 400, 162, 472, 1942, W. 2d decided in the June, guest driver and were ladies Ac- who were close friends. cording testimony, along traveling to driver a the several was gravel sharp road which had failed turns; the car complete turn, one the auto- the driver lost control, turning mobile in a that over ditch. The testified moving the was hour, of 70 to 80 miles and further that she warned the driver times several saying, you “Irene, are too road,” fast over this gravel and called to the driver’s attention the that fact the According was loose and on there curves road. were operator to the witness, of the car did never slow Again, go down. the trial court allowed ease again but jury, this court reversed and on the dismissed testimony degree basis that the fell short of that of wil- recovery ful and wanton misconduct would warrant a under the statute. Cooper Calico, 214 723, S. W. 2d drinking
a who driver, had been intoxicants, endeavored place parking to move his car from one on a lot doing another. In so, he end allowed back auto- protrude paving Highway mobile to over the No. Fayetteville. Admittedly, up north of he not did look highway attempting down the before to move, because he highway. ap- had not intended back onto the An proaching guest, young hit vehicle the car and injured a high girl. young lady school recovered judgment in the trial court, but court reversed judgment, stating: successfully deny
“No one could that his conduct Certainty negligent stopping was careless. he in not looking placing in each direction before his Chevrolet passengers position peril. gross his But even enough. not is negligence, Statutes, the Guest an indifferent wantonness, wilfulness, must There be a applicable consequences, respect alike abandonment guests.” to self same be cited could other cases
Numerous effect. Spence certainly agree of negli- Mrs.
I agree ordinary negligence, that her I cannot but category miscon- gence wilful reached proof a tire on the from It duct. is obvious losing which occasioned the air, automobile “humming” state: majority that was heard. The sound ** *
“ illogical to conclude *8 negligent down after the she failed slow was humming; grossly negligent when she was car started began swerving; the car down after failed to slow she she negligent failing wilfully wantonly to slow was grinding the car started, noise swerved down violently, to slow down, she twice warned more still continued to drive the same about 50 she miles hour.” place in
From all of the above took evidence, negli- minute, than a as far as wilful and wanton and, less gence (according to majority, concerned, “when only very grinding started”) noise lasted day straight highway, a clear Mrs. few seconds! On legal speed. moderate and rate of recognize inability of her that the Because tire my going I flat, the accident occurred. reiterate belief ordinary negligence, but I that she was consider do not these circumstances establish wilful negligence. respectfully therefore, dissent. I, George I am authorized state Justice Bose joins in this dissent. Smith