Oliphant v. Hamm

267 S.W. 563, 167 Ark. 167, 1925 Ark. LEXIS 4

• Court: Supreme Court of Arkansas
• Decided: January 12, 1925
• Status: Published

Opinion

Hart, J.,

(after stating the facts). It is first contended by counsel for the defendant that the evidence is not sufficient to support the verdict.

The relative rights of pedestrians and motor vehicles in a public street are equal, and each is obliged to act with due regard to the movements of the other. Neither is called upon to anticipate negligence of the other. Johnnie Hamm was twelve years of age, and was possessed of the mental and bodily vigor usual to boys of his age at the time he was injured. He had a right to walk along the street, observing such care as children of like age are accustomed to use, while the defendants had the right to drive their automobile along the street, observing such watchfulness for footmen as the circumstances seemed to require. According to the evidence for the plaintiff, Johnnie Hamm was walking along the beaten path on one side of the street, when the automobile of the defendant approached' him, without any signal being given, and struck him with such force as to knock him down and to cause one of the wheels to pass over his body. The jury might have inferred from the evidence for the plaintiff that the driver of the automobile had a clear view ahead of him, that he knew that his car was approaching the boy without making any noise scarcely, and that the boy was oblivious of his approach.'

Under the circumstances as proved by the plaintiff, the circuit court properly held that the question of negligence on the part of the defendants and contributory negligence on the part of the plaintiff were for the jury. Therefore we are of the opinion that, under the principles of law decided by this court in similar cases, the evidence was legally sufficient to support the verdict. Millsaps v. Brogdon, 97 Ark. 469; Minor v. Mapes, 102 Ark. 351; Carter v. Brown, 136 Ark. 23; and Brashears v. Arnett, 144 Ark. 196.

Counsel for the defendants also assign as error the action of the court in giving instructions Nos. 5, 6, 7, 8 and 12. The bill of exception recites the following: “The court then, at the request of the plaintiff, gave to the jury, over the objections of the defendants, the following instructions.” Then follow twelve instructions given by the court.

We have repeatedly held that exceptions to a trial court’s ruling in giving or refusing instructions must be separately made at the time, and that exceptions in gross are not sufficient to bring up the instructions for review, unless the instructions objected to are all incorrect. L. J. Smith Construction Co. v. Tate, 151 Ark. 278, and Dubisson v. McMullin, 163 Ark. 186.

We need not set out all of th¿ instructions referred to, because it is not claimed by counsel for the defendants that all of them are incorrect. In fact, some of them are admitted to be correct instructions. •

It is next insisted that the court erred in refusing to give an instruction asked for by the defendants as fóllows: “The sidewalk, in towns and cities, is the part of the street set apart for pedestrians, though they are not required, under the law, to walk on them.” No possible prejudice could have resulted to the defendants from the failure of the court to give this instruction. Moreover, the same idea was included in the instructions given ¡by the court.

Counsel for the defendants failed to bring forward in their motion for a new trial alleged errors of the trial court in refusing to give other instructions asked by them. Therefore such exceptions to the ruling of the court will be treated as abandoned, under our rules of practice. Myers v. Andre, 161 Ark. 393.

It follows that the judgment must be affirmed.