Johnson v. Poinsett Lumber & Manufacturing Co.

Johnson, C. J., (after stating the facts). It is apparent from the allegations of the complaint that the only cause of action alleged or relied upon by appellants was based upon the doctrine of “discovered peril,” or that appellees, after discovering the perilous position of appellant, “carelessly, negligently, wilfully and wantonly drove said car against her, ’ ’ thereby inflicting the injuries complained of. The court, without objections by appellants, submitted to the jury only the question of “discovered peril” by giving to the jury instructions 1, 2, 3, 5 and 6. The fact is appellants acquiesced in the court submitting this issue only, as evidenced by the court’s statement to the jury as follows: “Plaintiff is only requesting that the issue of discovered peril be submitted to the jury.” To which appellants did not object, but, on the contrary, tacitly acquiesced. Appellants complained in the trial court, and now complain, that the court erred in giving to the jury instruction No. 7, which told the jury as a matter of law that appellant Georgia Ann Johnson’s presence on the railroad track at the time of the injury was contributory negligence on her part, and by telling the jury in instruction No. 8 that her presence on the track at the time and place of the injury made her a trespasser as a matter of law. It was immaterial whether or not appellant, Georgia Ann Johnson, was a trespasser. It was also immaterial whether or not she was guilty of contributory negligence in being in the place she was at the time of the injury. The only question which should have been submitted by the trial court was the one of “discovered peril.” We do not approve of the instruction of the trial court in telling the jury as a matter of law that appellant, Georgia Ann Johnson, was a trespasser. Neither do we approve of the form of the instruction telling the jury that she was guilty of contributory negligence in being at the place she was at the time of the injury, because those were not issues in the ease and should not have been given to the jury. On the other hand, we cannot see how the jury was influenced by those instructions. The jury was told, in effect, that, regardless of contributory negligence and regardless of whether or not appellant was a trespasser, yet she should recover if appellee, Bums, discovered her peril in time to avoid the injury. This court, in St. L., I. M. & S. Ry. Co. v. Cabiness, 113 Ark. 599, 168 S. W. 1116, held: “However, the instruction could not, in any view of the case, have operated to defendant’s prejudice, for the reason that there was no controversy about the efficiency of the lookout. * * * In that state of the proof no prejudice could possibly have resulted, even if the language of the instruction was erroneous. ’ ’ In a long line of decisions this court has held: “Where the rights of the appellant were not prejudiced by the giving of an erroneous instruction, the case should not be reversed.” Lee Line Steamers v. Craig, 111 Ark. 550, 164 S. W. 274; Patterson v. Fowler, 22 Ark. 396; Hellems v. State, 22 Ark. 207; St. L., I. M. & S. Ry. Co. v. Phelps, 46 Ark. 485; Ark. Lbr. & Contractors’ Supply Co. v. Benson, 92 Ark. 392, 123 S. W. 367. We cannot agree with counsel for appellants that there is any conflict in the instructions given by the trial court. Lastly, it is contended on behalf of appellants that the trial court erred in giving to the jury the last half of instruction No. 8, which told the'jury that “discovered peril began, if at all, when it became apparent to Bums that appellant, G-eorgia Ann Johnson, was not only upon the track between the rails, but that she would remain there.” There was no error in giving this instruction. Certainly appellant, Georgia Ann Johnson, would not have been injured if she had remained outside the rails. It was an admitted fact in the lawsuit that Burns was driving a small motor car, and there was no contention in the trial court that appellant would have been in any danger had she remained outside the rails. We think the uncontradicted testimony in this case shows that, had appellant remained outside the rails, she would have been in no danger. Trial courts should be commended for narrowing down the issues for the jury’s consideration, instead of condemning them for an honest effort to do so. No prejudicial error appearing, the judgment is affirmed.