Cannor v. Cooper

Carleton Harris, Chief Justice. This appeal relates to a collision involving five automobiles. All drivers, and two passengers in two of the vehicles1 are parties to this litigation. The proof reflects that this accident happened on January 18, 1966, early in the morning, before sun-up, on the Saline River Relief Bridge on Interstate Highway No. 30, just south of Benton. The collisions occurred as a reult of all drivers involved partly losing control of the cars they were respectively driving when ice was encountered on this bridge. The action was instituted by Geraldine Mills, driver of one of the automobiles, and Adelia Cooper, mother of Mrs. Mills, who was a passenger in the Mills vehicle. Four ladies, all drivers of other vehicles involved, were named as defendants. The complaint alleges: ‘ ‘ On January 18,1966, plaintiff, Adelia Cooper, was riding as a passenger in a vehicle driven by plaintiff, Geraldine Mills, traveling North on Interstate Highway No. 30. Each of the defendants were also traveling North on the same highway. Defendant, Jannie Cannor, lost control of her vehicle and skidded into a bridge rail then collided with the vehicle driven by defendant, Bernice Beck. The vehicle in which plaintiff, Adelia Cooper, was a passenger was struck from the rear by a vehicle driven by Alva Ann Hill and was also struck one or more times by the vehicles of the other defendants.” It was asserted that all defendants were individually negligent, and the negligence of each contributed to cause the injuries and damages subsequently set out in the complaint. Thereafter, Mildred Pilcher and her husband, Murl Pilcher, counterclaimed against Mrs. Mills and her mother, and also sued Mrs. Cannor. Bernice Beck and Alva Ann Hill answered, asserting that, as to them, the accident was unavoidable. Jannie Cannor also pleaded unavoidable accident. On trial, the court gave AMI 604, which is an instruction on unavoidable accident, the giving of said instruction being objected to generally and specifically by counsel for appellees Mills and Cooper, and counsel for appellees Mildred and Murl Pilcher. The question of the negligence of each driver was submitted to the jury on interrogatories, and in answer to these interrogatories, the jury (varying from nine to eleven in the several answers) found none of the drivers guilty of negligence which was a proximate cause of the collisions. Mills and Cooper moved for a new trial, and the court granted this motion, holding that error had been committed in giving the defendants’ requested instruction, as follows: “If you believe from the evidence that the occurrence was an unavoidable accident; that is, one which was not proximately caused by negligence of any party in this case, then you should answer interrogatories 1 through 5 ‘no’.” Prom this order granting the new trial, appellants bring this appeal. The proof indicates that Mrs. Cannor was the first driver to go on the bridge. The second was either appellant Beck or a vehicle driven by an individual not involved in the collision and not a party to this suit. The third vehicle was driven by Mildred Pilcher, the fourth by Geraldine Mills, and the fifth by Alva Ann Hill. Mrs. Cannor, skidded on the ice, struck the bridge and stopped on the right shoulder. She testified that she was traveling 40 to 45 miles a,n hour when she drove onto the bridge. The car driven by Alva Ann Hill struck the Mills car. Mildred Pilcher testified that she was driving 30 to 40 miles per hour upon entering the bridge. She said that she was struck by the Mills car, and Mrs. Mills testified that she was struck by the Pilcher car, the Hill car, and a brown car, the owner being imknown. Mrs. Mills testified that she was traveling about 40 miles per hour when she drove onto the bridge. Mrs. Beck thought she was hit by Mrs. Pilcher. Appellants point out that all drivers testified that they had not previously observed any ice at any place before coming onto the bridge in question; that several of these drivers had already traveled over other bridges, and none had difficulties; that there was no evidence of excessive speed, nor evidence of a lack of proper control of the respective vehicles on the part of any driver until the ice was unexpectedly encountered on the Saline Biver Belief Bridge. It is forcefully argued that this case is a perfect example of an unavoidable accident, and appellants cite Industrial Farm Home Gas Company v. McDonald, 234 Ark. 744, 355 S.W. 2d 174. In the first place, the facts in McDonald are not in accord with the facts in the instant litigation. There, though the roadway was slick with snow and ice, both vehicle operators were admittedly driving slowly, were only about 25 feet apart when they observed each other, and neither could have seen the other earlier. Not only that, but both drivers testified that the accident was unavoidable. Here, according to the testimony, involved drivers were traveling anywhere from 30 to 45 miles per hour. The bridge was 500 feet long, and the proof showed that there was no precipitation, no fog, nor anything to obscure the view, except that it was still dark enough to use headlights; however, there is no complaint that any car could not be seen, and apparently all had their headlights on, and taillights were burning. In fact, several of the drivers commented on seeing taillights up ahead flashing. The evidence reflected that there was snow in the fields and yards, and the weather, though clear, was very cold. There was further testimony as to signs warning drivers to watch for ice on the bridges. Also, there is evidence in the record reflecting possible negligence on the part of some of the drivers. For instance, Mrs. Pilcher testified that Mrs. Cannor was crying, and stated that she (Cannor) “felt like she was the cause of all this.” Fay Jones, riding in the car with Mrs. Pilcher, testified that Mrs. Mills “come at quite a speed and hit us in the side.” At any rate, we have, in our last several cases which involved this point, held that instruction to be improper, and we reversed four cases because of the giving of it, and in yet another, affirmed the trial court in setting aside an earlier judgment wherein the instruction had been given.2 In Houston v. Adams, 239 Ark. 346, 389 S.W. 2d 872, the first of these cases, we discussed this instruction at length, pointing out that the defense of unavoidable accident is nothing more than a denial of negligence, or a contention that such negligence was not a proximate cause of the injury complained of; further, that to submit this issue is confusing, in that it suggests that unavoidability is a separate defense, requiring separate consideration by the jury. In Lewis v. Crockett, 243 Ark. 377, 420 S.W. 2d 89, we pointed out: “ * * * After all, in holding that this instruction should not have been given, we are not taking away appellee’s defense, for it is his contention that he was not negligent, and before he can be determined to be liable, a jury must find that he was negligent, and that such negligence was a proximate cause of the alleged injuries complained of.” By our decision in this case, we are again reiterating our disapproval of the giving of this instruction in damage suits arising out of automobile collisions, except in most unusual situations. What is an unusual situation? This too is commented upon in Crockett: “Perhaps it should again be emphasized that, since Houston v. Adams, supra, we have held that an unavoidable accident instruction is only permissible in exceptional situations. In that case, we mentioned, as an example of an unavoidable accident, a collision occurring because of a driver, with no previous coronary disease, losing control of his car as a result of a sudden heart attack. Accidents caused by an ‘Act of God’ might well be included — but certainly, no such issue is presented here.”3 We agree that the giving of the instruction in this case was error, and it may well be that the instruction was the basis for the findings of the jury. Affirmed. Brown and Fogleman, JJ., dissent. Footnotes [1] There were other passengers in some of the cars, but only two are parties to this litigation. [2] Houston v. Adams, 239 Ark. 346, 389 S.W. 2d 872; Burton v. Bingham, 239 Ark. 436, 389 S.W. 2d 876; Rhoden, Admr. v. Lovelady, 239 Ark. 1015, 395 S.W. 2d 756; Oklahoma Tire and Supply v. Bass, 240 Ark. 496, 401 S.W. 2d 35; Lewis v. Crocket, 243 Ark. 377, 420 S.W. 2d 89. [3] AMI 615 points out that: “A person is not liable to another whose damages were caused solely by an act of God. If an act of God concurs with the negligence of man to proximately cause damages, the negligent person is not excused from liability by the act of God.”