Opinion
Opinion delivered June 9, 1930.
1. STREET RAILROADS — COLLISION WITH AUTOMOBILE — IMPUTED NEGLIGENCE. — Though the negligence, of the driver of a motorcycle is not imputable to a guest riding on the rear seat, the guest is not relieved of the duty to exercise ordinary care for his own safety, failure to do so constituting contributory negligence. 2. TRIAL — INSTRUCTION IGNORING ISSUE. — An instruction ignoring a material issue on which the evidence is conflicting is prejudicial, notwithstanding another instruction correctly presenting the issue is found in another part of the charge. 3. TRIAL — INSTRUCTION IGNORING ISSUE. — An instruction authorizing a recovery for personal injuries if defendant was negligent which ignores the defense of contributory negligence is reversible error, though a subsequent instruction defined contributory negligence. 4. STREET RAILROADS — COLLISION WITH MOTORCYCLE — JURY QUESTION. — Whether a guest on a motorcycle colliding with a street car at an intersection was contributory negligent, held for jury.
Appeal from Pope Circuit Court; J. T. Bullock, Judge; reversed.
Elmer Schoggen and Rose, Hemingway, Cantrell Loughborough, for appellant.
R. E. Rison, John B. Gulley, Robt. Ragsdale and Lewis Rhoton, for appellee.
STATEMENT BY THE COURT.
Appellee brought this suit by his mother as next friend for damages for a personal injury alleged to have been sustained by the negligence of the appellant in a collision of one of its street cars with a motorcycle upon which he was riding at the time as a guest on the back seat of the vehicle and from the judgment against it the appeal is prosecuted by the Arkansas Power Light Company.
Harold Nuckols, a minor 18 years of age, was on August 13, 1929, a guest or passenger riding on the back seat of a motorcycle which was being driven east on 11th Street in the city of Little Rock, Ark., when one of appellant's street cars, running north on Main Street, negligently and recklessly ran into the motorcycle knocking it violently to the pavement and throwing Nuckols under the car without any fault on his part. It was alleged that the motorman was running the street car at a rapid rate of speed without keeping a lookout for persons or vehicles that might be using the 11th Street crossing and without giving any warning of the car's approach by sounding the gong, and that because of the negligence the collision occurred, and plaintiff's right leg was broken between the knee and ankle, a compound fracture of the right arm above the elbow, the breaking of the third finger of his right hand, the breaking off of the heel bone of the right foot and a severe concussion of the brain resulted, causing plaintiff to suffer intense pain, both mental and physical, and that his injuries are permanent, virtually destroying his earning capacity. By way of amendment it was alleged that under the treatment of the physician selected by appellant the broken bones had not healed, and it was probable that an amputation of his right leg, between the knee and ankle, would be necessary on that account, and that his right arm was permanently deformed, and its use impaired because of negligence in the setting of the bones. He also alleged that the appellant company had violated certain sections of the ordinances of the city of Little Rock regulating the traffic upon its street.
The answer denied each allegation of the complaint, and alleged that the collision and injury was caused entirely by the negligence of the driver of the motorcycle entering Main Street at a high and dangerous rate of speed without regard to the traffic laws, or the right of others using the street, and without keeping a lookout, and in violation of ordinance No. 4201 providing for regulation of the street traffic and that plaintiff was negligent in failing to exercise ordinary care for his own safety in failing to warn the driver not to operate the machine in a dangerous and negligent manner, and by failing to keep a lookout and warn the driver of the approach of the street car from the south, and that such negligence contributed to bring about the injury, for which appellant was not liable.
It appears from the testimony that Ralph Moore, telephone lineman, who had known the plaintiff about two years when he lived at Dumas, Ark., invited Harold Nuckols, then living in Little Rock east of Main Street, at about 8 o'clock in the morning to accompany him on a trip to Camp Pike on his motorcycle. They went first to King's Drug Store on Gaines Street where plaintiff got some money from his employer. They then proceeded down Broadway and across the Broadway Bridge to Camp Pike and after about an hour and a half returned to town across the Broadway Bridge and going south on Broadway to 11th Street turned east on 11th and on to Main, where the motorcycle was stopped to let two automobiles pass south. The driver of the motorcycle said he was listening for the gong or some signal to see if something was coming and not hearing anything started across Main. That when he got on the west tracks and was just about to cross the east track he saw the street car coming and did not have time to stop or to get across in front of it and tried to get out of the way but before he could get off the track the street car struck his front wheel. He knew the street cars operated on those tracks, and that it was dangerous to cross without listening for the gong; said he looked, and there was nothing coming this may and had crossed the west track, and, when he looked south, "I saw this one so close to me I could not stop and I could not get across." Witness was running about 10 miles an hour and heard no gong or signal sounded; if she had been given, he could have stopped in time to have avoided the collision. The street car was running from 10 to 20 miles an hour. There was no signal given by the motorman at all. Witness swerved to the left trying to get out of the way of the street car, but ran into it. The car ran about its length after it struck the motorcycle. The street car was only 7 or 8, not more than 10 feet away when witness saw it and his machine was about two feet from the street car track, when he first looked south for the car. He had entered the street and crossed one track before looking to his right, south, for a street car. There is very little space between the two tracks, which are in the middle of the street and the street between the sidewalks is 56 feet wide. Witness did not see the car when he was entering the intersection because there were some automobiles parked next to the curb. He could have seen down the track south after passing the parked cars if he had looked, but said he was looking north at that time because he had to cross the west track first. Said he understood the traffic ordinances of the city and had been operating a motorcycle on the streets six months or more. That hem could have stopped his motorcycle in time to have avoided the accident if the gong had been sounded. "There was nothing to prevent my seeing the motorman, except that he was higher than I, and I looked in the other direction. Naturally I looked down the west track because that was the closest to me."
Plaintiff, 18 years of age, stated that Moore, driving a motorcycle with a rear seat, came by and asked him to ride over to Camp Pike where he was going on some business, and he went riding on the back seat, having nothing to do with the control or movement of the machine. Said, returning from Camp Pike, "We came back across the Broadway Bridge, and went south on Broadway to Eleventh, and then turned east. The collision occurred at Eleventh and Main. I knew the street car tracks were there and that street cars ran on them north and south. When he came to Main Street, he stopped the motorcycle to let two automobiles go by us, and I listened for the gongs and heard none. There was none ringing. When the motorcycle got about two feet from the street car, Moore swerved to the left to keep the street car from running into us, and when he did that the left front corner of the street car struck the motorcycle in the side and a little to the front of the center of the motorcycle. Then I don't know what happened during the mix-up. I was taken to the General Hospital in Little Rock and attended by Dr. McKinney, who is employed by the defendant. * * * When I first saw the street car, the motorcycle was about two feet away from it. If they had sounded the gong, I could have notified Moore in time to stop, but there was no gong sounded. I had nothing to do with the control. When I first saw the street car, I was about 4 or 5 feet from the track and from the street car. When we got within about two feet of the street car, Moore turned the motorcycle to the left to try to avoid the collision. If he had gone straight, it would have hit us center. * * * When Moore stopped before entering Main Street, I looked down Main Street, but did not look again until we were within 4 or 5 feet of the street car. The car was coming so fast, it didn't take but a minute to get where we were. I imagine the street car was going between 5 to 15 miles an hour. When I first saw the street car, it was only 4 or 5 feet away. It was the left front corner of the car that hit the front of the motorcycle. We were within 2 feet of the car when Moore swerved to the left to avoid it. I was listening for a gong for my own safety, to see whether or not a car was coming. If I had heard a gong, I would have notified Moore. If I had looked to the south and seen the street car, I would have notified him, in order to protect myself."
Several witnesses testified that the street car approached the crossing without sounding the gong. The motorman, however, said he had sounded the gong three times while approaching beginning about 50 feet away. Some of the passengers stated that the gong was sounded, and several that the motorcycle drove right into the street car. There was a mark or dent on the street car about 10 feet from the front end where witnesses said the motorcycle struck.
The court instructed the jury giving over appellant's objection instruction No. 1, stating the issues, and instruction No. 2, over general and special objections of appellant and from the jury's verdict against it the appeal is prosecuted by appellant company.
(after stating the facts). Appellant insists that the court should have directed a verdict in its favor and urges especially that it erred in giving said instruction No. 2, which ignores and leaves out the question of contributory negligence of appellee pleaded as a defense, directing the jury to find for appellee in case it found appellant was negligent in the operation of its street car. The instruction was objected to generally and specifically, and it is also true that in instruction No. 3 the court defined contributory negligence and told the jury that the burden was upon the defendant to prove such negligence by a preponderance of the testimony, and that, if it found from the testimony that plaintiff was guilty of contributory negligence, he could not recover "however negligent the defendant may have been in causing the accident," which instruction was also generally and specifically objected to. Although the negligence of the driver of a motor vehicle cannot be imputed to an occupant of the car, riding as a guest, such guest is not relieved of the duty to exercise ordinary care for his own safety, failure to do which, contributing to the injury, constitutes contributory negligence barring the recovery. Carter v. Brown 136 Ark. 32, 206 S.W. 71; Itzkowitz v. Ruebel 158 Ark. 460, 250 S.W. 535; Graves v. Jewell Tea Co., 180 Ark. 980, 23 S.W.2d 974. This instruction is necessarily conflicting with instruction No. 2, which directs the jury to find for the plaintiff if it found appellant guilty of the negligence that caused the collision and injury without regard to whether the injured person was guilty of contributory negligence at the time. It has long been well settled that an instruction which ignores a material issue in the case about which the evidence is conflicting and allows the jury to find a verdict without considering that issue is misleading and prejudicial, notwithstanding, another instruction which correctly presents that issue is found in other parts of the charge. In Railway v. Rogers, 93 Ark. 564, 126 S.W. 375, it was said: "Where the instructions are thus conflicting, it is impossible for an appellate court to tell which of them the jury followed, and such an error calls for a reversal. Separate and disconnected instructions, each complete in itself and irreconcilable with each other, cannot be read together so as to modify each other and present a harmonious whole." See also Temple Cotton on Co. v. Skinner, 176 Ark. 17, 2 S.W.2d 676. The instruction is incomplete ignoring and leaving out, as it does, the question or defense of contributory negligence, and the fact that contributory negligence is defined in the next instruction does not remedy the defect, since it leaves out of consideration altogether the contributory negligence of plaintiff and leaves for determination appellant's conduct, the alleged negligence, as the sole issue for the jury's verdict, telling them "then your verdict shall be for the plaintiff." This instruction does not come within the apparent exceptions to the rule in those cases where it may be readily seen that the instructions may be read together without conflicting and as a harmonious whole, and, when they can be so read, it is the duty of the court to treat them accordingly. In Railway v. Rogers, supra, the instruction relative to contributory negligence followed the one defining negligence and allowed a recovery for the plaintiff if the jury so found, but it told the jury that the defendant company relied upon the plaintiff's contributory negligence as a defense. There is nothing in this instruction complained of indicating that contributory negligence was an issue in the case, nor in the following instruction defining it, requiring the jury to consider the alleged contributory negligence of the plaintiff as a defense to the suit in determining the question of liability of appellant under the said instruction No. 2.
We do not pass upon other assignments of error, since the cause must be reversed for the giving of said erroneous instruction No. 2. Neither can it be said under the circumstances of this case that appellee was guilty of contributory negligence as a matter of law, and appellant entitled to a directed verdict. The testimony is conflicting to some extent, leaving the question properly for the determination of the jury.
For the error designated, the judgment is reversed, and the cause remanded for a new trial.