109 Ark. 4 | Ark. | 1913
(after stating the facts). The court erred in granting appellee’s prayer for instruction No. 2. It was a question for the jury to determine as to whether or not the appellee was negligent in undertaking to walk from Halley to Trippe station, under the facts which the testimony tended to prove.
. It did not follow as a matter of law that if the jury found the facts as recited in the first part of the second instruction, given at appellee’s request, that “she had a right to elect to walk to said station, if she could not get other means of conveyance, without assuming the risk incident to taking such walk. ’ ’ It was still a question for the jury to determine as to whether or not appellee was negligent and assumed the risk incident to the journey, even though the facts were as stated in the first part of the instruction, for the undisputed evidence shows that appellee was a woman sixty-nine years of age, and that she was in a debilitated condition at the time, and that it was a hot day. Under those circumstances, which the first part of the instruction ignored, it was a jury question as to whether or not she was guilty of contributory negligence in walking from Halley to Trippe station.
While the undisputed evidence shows that the aged mother was induced to take the long walk of four miles out of love and deep solicitude for her daughter who was so critically ill, it was nevertheless for the jury to say whether or not one of her age and enfeebled condition should have undertaken such a journey under the circumstances disclosed by the evidence. The first part of the instruction tells the jury that she had a right, under the circumstances, to walk to said station without assuming the risk incident to taking such walk, and the latter part of the instruction leaves it to the jury to say whether or not, from the evidence, “the circumstances justified her in electing to walk,” but the two propositions are wholly inconsistent and irreconcilable, and were well calculated to mislead the jury. In this respect, the instruction was inherently erroneous, and no specific objection was required to present the error of the court’s ruling, because it was not a mere defect in verbiage or form, but one of substance, to which a general objection would be sufficient. But even if a specific objection had been necessary, prayer No. 2 of the appellant, which the court granted, was in direct conflict with the objectionable part of prayer No. 2 of the appellee, and was tantamount to a specific objection to such prayer.
To furnish the jury a correct guide, the charge of the court as a whole must be consistent and harmonious. St. Louis, I. M. & S. Ry. Co. v. Steed, 105 Ark. 205; St. Louis, I. M. & S. Ry. Co. v. Rogers, 93 Ark. 564, and cases there cited; A. L. Clark Lumber Co. v. St. Coner, 97 Ark, 358; St. Louis, I. M. & S. Ry. Co. v. Brown, 100 Ark. 107; Hodge-Downey Co. v. Carson, 100 Ark. 433; Dare v. Harper, 101 Ark. 37, 140 S. W. 983.
Appellee’s prayer for instruction No. 3 was defective in that it did not require the jury, in case of a favorable verdict for the appellee, to base their finding as to the amount of damages on the evidence in the case. See St. Louis, I. M. & S. Ry. Co. v. Steed, supra. This instruction, however, when taken in connection with the other prayers, was not so misleading to the jury as to constitute reversible error.
For the error in giving instruction No. 2, the judgment is reversed and the cause remanded for a new trial.
