Thompson v. Southern Lumber Co.

Wood, J., (after stating the facts). The issues of negligence, contributory negligence and assumed risk, under the evidence, were questions for the juiy. There was ample evidence to have sustained a verdict in favor of the appellants on the question of negligence; but, since the verdict of the jury was in favor of the appellee, the only question for our consideration is whether or not these issues were submitted upon 'proper instructions. When the instructions given at the instance of the appellants and those given at the instance of the appellee are considered, as they should be, in connection with each other and as a whole, we are of the opinion that there is no reversible error in the court’s rulings upon them, and they presented propositions that have been so often passed upon by this court, and that are so familiar to the profession, that we deem it unnecessary to discuss them at length. No specific objection was urged at the trial, and on general objection to each of the instructions we are of the opinion that they were not calculated to confuse or mislead the jury, but, on the whole, that the charge fully and correctly submitted the issues. Appellants urge that it was improper to tell the jury, in the first instruction, that they were to indulge the presumption that the defendant was not guilty of any negligent or careless act in reference to the cause of the death of Thompson, and., that the burden was upon the appellants to overcome such presumption. But while this instruction was not happily worded, and, if specific objection had been made to it, might have been presented in more correct form, it was nevertheless not inherently erroneous, and was manifestly intended by the trial court to announce the law as expressed by this court in St. Louis, I. M. & S. Ry. Co. v. Gaines, 46 Ark. 555, where we held that it is not sufficient merely to prove the injury and that it resulted from defective machinery, but that the plaintiff must further prove that it happened because the master did not exercise proper care in the premises. St. Louis, I. M. & S. Ry. Co. v. Rice, 51 Ark. 467. The fourth instruction is not a correct definition of contributory negligence, and the instruction, in the absence of other instructions correctly defining negligence, would have been insufficient to have presented the question of contributory negligence; but, when this instruction is taken in connection with instructions that were given at the instance of the appellants defining negligence and contributory negligence, and also instructions Nos. 5 and 6, given at appellee’s request, which contain a correct definition of ordinary care, or its counterpart, negligence, we are of the opinion that instruction No. 4 is not misleading, and that any objection to its verbiage or form merely should have been presented by a specific objection, and it doubtless would have been corrected so as to have met this objection. It was not inherently erroneous, and a general objection was not sufficient. See Burnett v. State, 80 Ark. 225; Aluminum Co. of No. America v. Ramsey, 89 Ark. 522. Appellants complain' of the latter portion of the fifth instruction given at appellee’s request, because they say its language is clearly peremptory; but we are of the opinion that, when the concluding part of the instruction is read in connection with the first part of it, it is not open to the objection that it was argumentative or peremptory in its effect, nor do we think the instruction was abstract. The objection to the seventh instruction is not well founded. There was some evidence to warrant the court in submitting to the jury the question as to whether or not Thompson negligently permitted his sleeve to be caught in the belt. The testimony of Ketchans, as set forth in the statement, was sufficient to warrant the submission of this question to the jury. It is not error for the court to give a specific instruction in a hypothetical form covering the various phases of the evidence adduced. St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 134; Taylor v. McClintock, 87 Ark. 243. The court did not err in excluding the testimony of the witnesses by which appellants sought to contradict the witness Ketchans. This examination was not responsive to any matter elicited by the appellee in its examination of the witness in chief, and was in regard to a matter that was entirely collateral and immaterial to the issue. It was not contended, and there was no evidence on the part of the appellant to show, that Thompson was inexperienced or ignorant. On the contrary, the uncontradicted proof was to the effect that he was a millwright and experienced in the work in which he was engaged at the time of his injury. A witness can not be impeached upon matters collateral to the issue. See Hinson v. State, 76 Ark. 366; Hot Springs St. Ry. Co. v. Bodeman, 76 Ark. 302; McAllister v. State, 99 Ark. 604. The judgment is affirmed.