Kendrick v. Rankin

Griffin Smiti-i, Chief Justice. Although the error thought by appellant to be sufficiently erroneous and prejudicial to justify a reversal is Instruction No. 7, it is necessary to show the essential facts in order to understand the instruction. Ocus Rankin, with his wife and three children and a friend, were traveling in a general southernly direction toward Pine Bluff when Ocus, who was driving, observed a bus near the south end of the Biddle bridge. The bridge is a two-lane structure approximately 235 feet long and 18 feet wide. A center traffic line was marked on the bridge surface. Lawrence Kendrick was coming to Little Rock and testified that he followed the bus at a safe distance. The bus stopped approximately eight feet from the south end of the bridge, but Kendrick says that by that time he was within ten feet of it. In the meantime, however, he had undertaken to apply his brakes, but found that when the pedal was depressed it touched the floorboard without appreciable response. It was then that he realized the awkward situation he was in and concluded to cut around the bus, thinking he could clear it and get back to his own side of the highway—the east lane. He had seen a car approaching, but did not think it was close enough to interfere with the maneuver seemingly necessary to his safety. The water under the bridge was at a high level and any attempt to turn from the road would have been impracticable. Kendrick testified that he was not going at an excessive rate of speed, and he thought the oncoming car was traveling at about the same rate. Rankin, whose car was struck in the left front, testified that when he saw Kendrick’s car he (Rankin) was proceeding at about twenty miles an hour and that he slowed as quickly as mechanical equipment and physical reaction would permit. The jury found that Kendrick was at fault, that Rankin was not contributorily negligent, and that damages to the Rankin car and personal injuries suffered by husband and wife were $1,158.16. Instruction No. 7 told the jury that a motorist has the right to assume that the driver of another automobile will obey traffic laws and exercise due care for his own safet}?- and the safety of others; and, if the motorist acts upon this assumption there is an absence of contributory negligence. “Therefore,” says the instruction, “if you find from a preponderance of the evidence that Rankin was driving his car across the Biddle bridge in a lawful and proper manner, facing, a bus which had stopped to allow his passage, and there was nothing in the situation then present to warn him as a reasonably prudent person of imminent danger, he could assume that his traffic lane would remain clear, and he would not be guilty of contributory negligence under such circumstances, in acting on such assumption.” It is argued, first, that the instruction is ambiguous and abstract, and secondly that it is an incorrect statement of the law. The first contention is untenable for want of a specific objection. The second almost trespasses the borderline to fall within that class of cases where an instruction has been held to be inherently wrong, requiring nothing more than a general objection. In his brief appellant says that the instruction is in two paragraphs and inferentially permits the jury to attach undue importance to the closing expression regarding contributory negligence. Perhaps the original manuscript was paragraphically disconnected, but the bill of exceptions does not show this. There are separate sentences, but only one paragraph. However, this would not be controlling. The instruction contains a number of ifs in the concluding statements complained of. It must be remembered that Kendrick testified in effect that Rankin’s speed was not excessive, hence, under the second subdivision of the instruction the jury was permitted (a) to determine whether Rankin was driving in a lawful manner, (b) whether anything in the physical situation with which he was faced was of a character to warn a reasonably prudent person of impending danger, and (c) if none of these elements was present Rankin would be justified in assuming that the traffic lane would remain clear. The phase giving some concern is what might be termed the indefinite nature of this assumption—how long, as a matter of law, could a prudent person entertain this presumption? The instruction told the jury that Rankin would not be guilty of contributory negligence under such circumstances in believing he was safe. We have often said that violation of a traffic safety statute or ordinance, such as the action of Kendrick in passing the bus, is evidence of negligence, and not negligence per se. Plaintiffs’ Instruction No. 4 correctly states the law on this point. Instruction No. 5, given at the defendant’s request, informed the jury that the plaintiff [s] could not recover because of Kendrick’s negligence if it should also find that Rankin was negligent, provided such negligence by Rankin proximately contributed in any degree, however slight, to the happening of the accident and injuries. Por a discussion of analogous principles see Hearn v. East Texas Motor Freight Lines, ante, p. 297, 241 S. W. 2d 259. In Rexer v. Carter, 208 Ark. 342, we quoted from an Illinois case where it was held that the driver of an automobile has the right to assume that another driver (a collision being involved) will obey an ordinance prohibiting any vehicle from being driven onto any boulevard without first bringing such vehicle to a full stop, “and he is not guilty of contributory negligence in acting upon such assumption.” The phraseology in Instruction No. 7 is almost identical with wording we approved in the Rexer-Carter case. See, also, Kirby v. Swift & Co., 199 Ark. 442, 134 S. W. 2d 865; Coca Cola Bottling Co. v. Shipp, 174 Ark. 130, 297 S. W. 856; Arkansas Power & Light Co. v. Boyd, 188 Ark. 254, 65 S. W. 2d 919. Conceding as an abstract question of law that' in giving an instruction it is best, not' to specifically mention physical objects, such as “facing a bus which had stopped to allow [Rankin’s] passage,” yet when all of the circumstances are considered it is inconceivable that the jury was misled regarding the degree of care Rankin was required to exercise, hence there could have been no prejudice. Affirmed. Mr. Justice Holt dissents.