{ "id": 1376970, "name": "Oliphant v. Hamm", "name_abbreviation": "Oliphant v. Hamm", "decision_date": "1925-01-12", "docket_number": "", "first_page": "167", "last_page": "172", "citations": [ { "type": "official", "cite": "167 Ark. 167" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "102 Ark. 354", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "97 Ark. 469", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1318782 ], "opinion_index": -1, "case_paths": [ "/ark/97/0469-01" ] }, { "cite": "136 Ark. 23", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1570035 ], "opinion_index": -1, "case_paths": [ "/ark/136/0023-01" ] }, { "cite": "130 Ark. 406", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720974 ], "opinion_index": -1, "case_paths": [ "/ark/130/0406-01" ] }, { "cite": "102 Ark. 351", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1354051 ], "opinion_index": -1, "case_paths": [ "/ark/102/0351-01" ] }, { "cite": "142 Ark. 593", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1590524 ], "opinion_index": -1, "case_paths": [ "/ark/142/0593-01" ] }, { "cite": "124 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1554880 ], "opinion_index": -1, "case_paths": [ "/ark/124/0001-01" ] }, { "cite": "156 Ark. 54", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1358403 ], "opinion_index": -1, "case_paths": [ "/ark/156/0054-01" ] }, { "cite": "135 Ark. 499", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1571586 ], "opinion_index": -1, "case_paths": [ "/ark/135/0499-01" ] }, { "cite": "131 Ark. 121", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1578625 ], "opinion_index": -1, "case_paths": [ "/ark/131/0121-01" ] }, { "cite": "91 Ark. 43", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1511769 ], "opinion_index": -1, "case_paths": [ "/ark/91/0043-01" ] }, { "cite": "78 Ark. 490", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1497316 ], "opinion_index": -1, "case_paths": [ "/ark/78/0490-01" ] }, { "cite": "38 Ark. 246", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900494 ], "opinion_index": -1, "case_paths": [ "/ark/38/0246-01" ] }, { "cite": "26 Ark. 334", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726894 ], "opinion_index": -1, "case_paths": [ "/ark/26/0334-01" ] }, { "cite": "73 Ark. 407", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504013 ], "opinion_index": -1, "case_paths": [ "/ark/73/0407-01" ] }, { "cite": "95 Ark. 62", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1543458 ], "opinion_index": -1, "case_paths": [ "/ark/95/0062-01" ] }, { "cite": "76 Ark. 400", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1500992 ], "opinion_index": -1, "case_paths": [ "/ark/76/0400-01" ] }, { "cite": "116 Ark. 26", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1532237 ], "opinion_index": -1, "case_paths": [ "/ark/116/0026-01" ] }, { "cite": "102 Ark. 315", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "161 Ark. 393", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1388547 ], "opinion_index": 0, "case_paths": [ "/ark/161/0393-01" ] }, { "cite": "163 Ark. 186", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1383878 ], "opinion_index": 0, "case_paths": [ "/ark/163/0186-01" ] }, { "cite": "151 Ark. 278", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1366089 ], "opinion_index": 0, "case_paths": [ "/ark/151/0278-01" ] }, { "cite": "144 Ark. 196", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1588014 ], "opinion_index": 0, "case_paths": [ "/ark/144/0196-01" ] }, { "cite": "97 Ark. 469", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1318782 ], "opinion_index": 0, "case_paths": [ "/ark/97/0469-01" ] }, { "cite": "136 Ark. 23", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1570035 ], "opinion_index": 0, "case_paths": [ "/ark/136/0023-01" ] }, { "cite": "102 Ark. 351", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1354051 ], "opinion_index": 0, "case_paths": [ "/ark/102/0351-01" ] } ], "analysis": { "cardinality": 506, "char_count": 9598, "ocr_confidence": 0.467, "pagerank": { "raw": 2.784786926184487e-07, "percentile": 0.8355184028103569 }, "sha256": "0016e4ddfba529815afb3aea50a651996b65bc2d5736a72f8ef02298ef55e161", "simhash": "1:bda1f9821d2d8cd3", "word_count": 1672 }, "last_updated": "2023-07-14T21:22:17.434704+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Oliphant v. Hamm." ], "opinions": [ { "text": "Hart, J.,\n(after stating the facts). It is first contended by counsel for the defendant that the evidence is not sufficient to support the verdict.\nThe 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.'\nUnder 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.\nCounsel 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: \u201cThe court then, at the request of the plaintiff, gave to the jury, over the objections of the defendants, the following instructions.\u201d Then follow twelve instructions given by the court.\nWe have repeatedly held that exceptions to a trial court\u2019s 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.\nWe need not set out all of th\u00bf 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. \u2022\nIt is next insisted that the court erred in refusing to give an instruction asked for by the defendants as f\u00f3llows: \u201cThe 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.\u201d 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 \u00a1by the court.\nCounsel 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.\nIt follows that the judgment must be affirmed.", "type": "majority", "author": "Hart, J.," } ], "attorneys": [ "Mrs. Myrtle Hamm, an aunt of Johnnie Hamm, was the principal witness for the plaintiff.", "Kincannon & Kincannon, for .appellant.", "Evans & Evans, for appellee." ], "corrections": "", "head_matter": "Oliphant v. Hamm.\nOpinion delivered January 12, 1925.\n1. Municipal Corporations \u2014 rights op pedestrians and motorists. \u2014 The relative rights of pedestrians and motorists in the public streets are equal, each being obliged to act with due regard to the movements of the other, but neither is called upon to anticipate the other\u2019s negligence.\n2. Municipal corporations \u2014 evidence op motorist\u2019s negligence.\u2014 Evidence that plaintiff, a twelve-year-old boy, was run over by defendant driving an automobile without giving warning as he was walking along the side of the street, and that defendant saw plaintiff and knew that he was oblivious to the car\u2019s approach, held to sustain a verdict for plaintiff.\n3. Appeal and error \u2014 instructions\u2014exceptions in gross..\u2014 Exceptions in gross to the giving of several instructions are not sufficient for review unless all of the instructions are incorr\u00e9et.\n4. Appeal and error \u2014 refusal of instruction \u2014 harmless error.\u2014 In an action for negligently driving over a child walking along the side of a street, refusal to instruct that \u201cthe sidewalk in towns and cities is the part of the street set aside for pedestrians, though they are not required under the law to walk on them\u201d held not prejudicial.\n5. Appeal and error \u2014 abandonment of exceptions. \u2014 Exceptions to the refusal to give instructions requested will be treated as abandoned when not assigned as grounds for new trial in the motion therefor.\nAppeal from Logan Circuit Court, Southern District; James Cochran, Judge;\naffirmed.\nSTATEMENT OP PACTS.\nJohnnie Hamm, by A. L. Hamm, his father and next friend, instituted this action against O. C. Oliphant and Eobert Oliphant to recover damages on account of their alleged negligence in driving an automobile against him while he was walking along the street.\nMrs. Myrtle Hamm, an aunt of Johnnie Hamm, was the principal witness for the plaintiff.\nAccording to her testimony, Johnnie\u2019s mother died when he was an infant, and she took him to raise. He lived with her in the old town of Booneville in October, 1921, at the time he was injured by being run over by an automobile driven by Robert Oliphant. Johnnie went into the kitchen and got a piece of pie from her. He then went out into the street and started west on it. She went into the front part of the house, and saw him going along the street in the beaten roadway where pedestrians usually walked. There was no sidewalk on the street. As Johnnie walked along the street, Eobert Oliphant drove his automobile along the street behind him. He did not give any signal of any kind of the approach of the automobile. Just before the automobile struck him, she saw Lee Austin driving an automobile on the same street, approaching Johnnie, and Austin stopped his car and motioned to Johnnie. Just as Austin did this, Oliphant struck Johnnie with his automobile and severely injured him.\nAccording to the testimony of Lee Austin, as he drove into the street towards the residence where Johnnie Hamm lived, he saw the latter coming towards him along the beaten pathway of the street, where footmen usually walked. Robert Oliphant was behind Johnnie, driving a Packard automobile belonging to O. O. Oliphant. Austin thought that Oliphant was going to run over Johnnie, and pulled his own automobile to the right of the street and motioned to Johnnie to come towards him. Just at that instant Oliphant\u2019s automobile struck Johnnie and ran over his body. Oliphant gave no signal of any kind of his approach, and the Packard automobile he was driving moved without making any noise scarcely.\nAccording to the testimony of Johnnie Hamm, he saw Lee Austin driving towards him, and motioned to him after he stopped his car. He started towards Austin, but had not yet taken a step when the car driven by Robert Oliphant hit him and knocked him down. Oliphant gave no warning that he was approaching in his car, and the witness did not know that he was behind him until the car struck him.\nA physician testified that Johnnie had two or three ribs broken and Was otherwise bruised and injured.\nAccording to the testimony of Robert Oliphant, he was driving slowly, and sounded his horn. as he approached Johnnie Hamm. Lee Austin drove into the same street in an automobile from the opposite direction, and stopped his car near the sidewalk. He motioned to Johnnie to come to him, and the latter did so. The witness thought that Johnnie was going to stand there and talk to Austin; but, just as his car passed them. Johnnie suddenly turned and stepped in front of the car. The bumper knocked him down, but neither of the wheels passed over him.\nThe jury returned a verdict in favor of the plaintiff in the sum of $300, and from the judgment rendered the defendants have duly prosecuted an appeal to this court.\nKincannon & Kincannon, for .appellant.\nWhile it is a question for the jury to say whether due care had been exercised by appellee (102 Ark. 315), yet the evidence does not warrant the jury\u2019s finding. Instruction No. 3 should have been given. Negligent failure to observe reasonable care will prevent recovery. 7 L. R. A. p. 678. See also 116 Ark. 26.\nEvans & Evans, for appellee.\nThere is nothing before this court for consideration, for the reason that appellants did not reserve any exceptions to the action of the trial court in overruling their motion for a new trial. C. & M. Digest, \u00a7 1320; 76 Ark. 400; 95 Ark. 62. Exceptions were not saved by appellant to the giving of instructions complained of, and are of no avail now. 73 Ark. 407; 26 Ark. 334; 38 Ark. 246; 78 Ark. 490; 91 Ark. 43; 131 Ark. 121; 135 Ark. 499; 156 Ark. 54. Appellee was not guilty of negligence as a matter of law. 20 R. C. L., \u00a7 105; 124 Ark. 1; 142 Ark. 593. Appellee had ,a right to be in the street. Drivers .of cars must anticipate the presence of pedestrians in the street, and exercise reasonable care to avoid injuring them. 102 Ark. 351; 130 Ark. 406; 136 Ark. 23.; 97 Ark. 469; 102 Ark. 354." }, "file_name": "0167-01", "first_page_order": 179, "last_page_order": 184 }