EAST ARKANSAS LUMBER COMPANY v. MOSS.

No. 4-2637
52 S.W.2d 49Supreme Court of Arkansas
Opinion delivered July 11, 1932.

1. APPEAL AND ERROR — CONCLUSIVENESS OF VERDICT. — A verdict approved by the trial court will be upheld on appeal if there is substantial evidence to support it. 2. NEGLIGENCE — CONTRIBUTORY NEGLIGENCE. — Whether plaintiff, suing for a broken arm struck by defendant’s truck, was guilty of contributory negligence in sitting in a car with her arm partly extended beyond the window of the car, held for the jury. 3. JURY — DISQUALIFICATION OF JUROR. — A new trial will not be granted on account of the relationship of a juror to a party where the bill of exceptions does not disclose that any questions as to relationship of the jurors to the parties were asked. 4. APPEAL AND ERROR — STATEMENT IN MOTION FOR NEW TRIAL. — A mere statement in a motion for new trial that questions were asked the jury and answers made, with no showing in the record, and no evidence supporting the motion for new trial, is insufficient to raise a question as to a juror’s disqualification.

Appeal from Clay Circuit Court, Eastern District; Neil Killough, Judge; affirmed.

STATEMENT BY THE COURT.

Anna Moss sued the East Arkansas Lumber Company, a corporation, to recover damages sustained by her while sitting in her automobile, parked on the business premises of the defendant, which, she alleges, occurred by reason of the negligence of the defendant in the collision of one of its trucks with the car in which she was sitting. The defendant denied negligence on its part, and also denied injuring the plaintiff.

According to the testimony of Mrs. Anna Moss, she was thirty-six years of age, and went to the business

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premises of the defendant in Rector, Arkansas, for the purpose of purchasing a glass door and some lumber with which to repair her dwelling house. The defendant’s business place consisted of an office which fronted on the main street, with a sash room or warehouse back of it. There was a door leading from the office to a driveway on the left of the office, and also a door leading from the sash room to driveway on the left of it. There was a place for storing lumber on the left-hand side of the driveway, which was twenty feet wide. The plaintiff and her husband drove their car into the driveway from the north and parked it just beyond the door leading into the sash room, which was about fifty feet from the front entrance. The plaintiff and her husband then went in and purchased the materials for which they had come. They then left the office and went to their car, and the plaintiff sat down in it. There was no truck of the defendant or of any one else standing in the driveway when she went back to the car. Before she knew it, she was struck by something which numbed her arm. This was done while her husband was putting the key in the car and before it had started up. She told him that something had struck her, and in about three minutes she suffered severe pain. At the time a driver of a truck of the defendant got out of the truck which collided with her car and stood up against the wall of the building. The force of the collision broke the right arm of the plaintiff.

On cross-examination, the plaintiff stated that the truck struck the car in which she was sitting, and the truck knocked the knob off of the door of the car on the side next to her. The extension bed of the truck broke the knob off, and at the same time struck her arm and broke it. She was asked if the driver of the truck of the defendant was not standing in the door of the office, and answered “No.” She was asked if her arm had not been struck while her husband was attempting to back the car into the street and answered “No.” She stated that

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her husband had never got their car started, and that she did not reach out and try to get hold of one of the standards of the truck and got her arm hurt in that way.

According to the testimony of the business manager of the defendant, he saw the accident. He stated that the husband of the plaintiff started to back their car into the street, a distance of about fifty feet, and collided with the truck of the defendant, which had been parked on the opposite side of the driveway from the plaintiff’s car, and that there was an intervening space of about twenty-five feet in length between the two cars. He stated that, when the plaintiff’s car collided with the truck, she took hold of one of the standards in the extension bed of the truck, and that her arm was broken by it when her husband suddenly started their car.

The driver of the truck stated that he was standing in the front of the office of the defendant and saw the whole accident. He stated that he had parked the truck in the driveway on the opposite side from the office, where he had been accustomed to parking it for fourteen years. He testified that the accident was caused wholly by the negligence of the husband of the plaintiff in backing their car out of the driveway, and in colliding with the truck parked on the other side of the drive from their car, and about twenty-five feet distant from it.

Two other witnesses for the defendant testified that the plaintiff admitted to them within a few days after the accident occurred that it was caused wholly by the negligence of her husband in backing their car out of the driveway into the street from which they entered the driveway. The plaintiff denied having made these statements to the two witnesses.

There was a verdict and judgment for the plaintiff in the sum of $500, and the defendant has appealed.

L. Hunter and Carl L. Hunter, for appellant.

Ward Ward, for appellee.

HART, C.J.

(after stating the facts). It is first insisted by counsel for the defendant that the great

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preponderance of the evidence shows that the accident occurred wholly on account of the negligence of the plaintiff, and that the trial court erred in not granting the defendant a new trial. This may be true, and still there is no reversible error on this account. It has been held repeatedly to be the duty of the trial court to set aside the verdict and grant a new trial where it is of the opinion that the verdict of the jury is contrary to the weight of the evidence. On the other hand, after the jury has weighed the evidence, and the trial court has given its approval of the finding of the jury by refusing to grant a new trial on the ground that the verdict is contrary to the evidence, it is the duty of this court to uphold the verdict where there is any evidence of a substantial character to support it. St. Louis, Southwestern Railway Company v. Ellenwood, 123 Ark. 428, 185 S.W. 768; and Chalfant v. Haralson, 176 Ark. 375, 3 S.W.2d 38, and cases cited.

The testimony of the plaintiff was as to matters about which she had personal knowledge. She testified that the truck of the defendant was driven so that it collided with her car in which she was sitting and which was parked in a driveway on the premises of the defendant corporation, where she had been on business. She testified that the extension bed of the truck hit her car before her husband had started to move it, and that the collision knocked off the knob of the door next to which she was sitting and broke her arm, which was lying on top of the lowered window of the door of the car. It is insisted by counsel for the defendant that it was a physical impossibility for the accident to have happened in this way, but the testimony of plaintiff shows that, if her arm was lying in the position that she indicated to the jury it night have been, and was struck by the extension bed of the truck of the defendant, which was being driven through the driveway by one of its servants. Her testimony warranted the jury in finding a verdict in her favor on the question of the negligence of the defendant. It

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cannot be said as a matter of law that she was negligent in sitting in her car in the driveway of the defendant’s place of business with her arm extending to some extent beyond the window of her car. The question of her contributory negligence in this regard was for the jury. Therefore we find that the evidence was legally sufficient to warrant the verdict. Wells v. Sheppard, 135 Ark. 466, 205 S.W. 806; and Kittrell v. Wilkerson, 177 Ark. 1174, 9 S.W.2d 788.

It is next insisted by counsel for the defendant that the judgment must be reversed because one of the jurors was related to the plaintiff within the prohibited degree of consanguinity. One of the defendant’s grounds for a new trial was that one of the jurors was related to plaintiff’s counsel within the degree of consanguinity, disqualifying him as a juror, and that such fact of relationship was not discovered by the defendant until after the verdict had been returned and judgment rendered. It is insisted that the juror was disqualified because it is generally known that in damage suits of this sort the attorney of the plaintiff has a contingent fee. There is no proof of this, however, in the record. There is no evidence in the record that the juror was asked questions for the purpose of ascertaining his qualifications. A new trial will not be granted on account of the disqualification of the juror by reason of the relationship to the appellee where the bill of exceptions does not disclose that on the voir dire any questions were asked as to relationship of the jurors to the parties. Fones Bros. Hardware Company v. Mears, 182 Ark. 533, 32 S.W.2d 313, and cases cited.

A mere statement in a motion for a new trial that questions were asked the jury and answers made, with no showing in the record, and no evidence supporting the motion for a new trial, is insufficient to raise a question as to the juror’s disqualification. Van Fleet-Ellis Corporation v. Higginbotham, 182 Ark. 812, 32 S.W.2d 800.

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We find no reversible error in the record, and the judgment will therefore be affirmed.