{ "id": 1688447, "name": "Shroeder v. Johnson", "name_abbreviation": "Shroeder v. Johnson", "decision_date": "1962-01-08", "docket_number": "5-2541", "first_page": "443", "last_page": "450", "citations": [ { "type": "official", "cite": "234 Ark. 443" }, { "type": "parallel", "cite": "352 S.W.2d 570" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "85 S. W. 428", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "74 Ark. 256", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720049 ], "opinion_index": 0, "case_paths": [ "/ark/74/0256-01" ] }, { "cite": "114 S. W. 2d 1081", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "195 Ark. 808", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724774 ], "opinion_index": 0, "case_paths": [ "/ark/195/0808-01" ] }, { "cite": "243 S. W. 70", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "154 Ark. 621", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1361174 ], "opinion_index": 0, "case_paths": [ "/ark/154/0621-01" ] }, { "cite": "24 S. W. 885", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "58 Ark. 353", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329143 ], "opinion_index": 0, "case_paths": [ "/ark/58/0353-01" ] }, { "cite": "193 S. W. 2d 326", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1475864, 1475774 ], "opinion_index": 0, "case_paths": [ "/ark/209/0941-01", "/ark/209/0940-01" ] }, { "cite": "209 Ark. 941", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1475864 ], "opinion_index": 0, "case_paths": [ "/ark/209/0941-01" ] }, { "cite": "93 A. 2d 541", "category": "reporters:state_regional", "reporter": "A.2d", "pin_cites": [ { "page": "543" } ], "opinion_index": 0 }, { "cite": "201 Md. 235", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2233842 ], "opinion_index": 0, "case_paths": [ "/md/201/0235-01" ] } ], "analysis": { "cardinality": 725, "char_count": 13779, "ocr_confidence": 0.504, "pagerank": { "raw": 4.879183066854323e-07, "percentile": 0.9332511277684529 }, "sha256": "c06cc9b5ed80d07c4d0f2a1c59f7922dc90cf82f76a095d293972599eeb310f3", "simhash": "1:eb866023a5662dee", "word_count": 2434 }, "last_updated": "2023-07-14T15:15:30.076044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McFaddin, J., dissents as to reversal." ], "parties": [ "Shroeder v. Johnson." ], "opinions": [ { "text": "Paul Ward, Associate Justice.\nThis is a highway intersection accident case. Appellant, George Shroeder, was driving east on a secondary road where it intersected Highway number 45 running north and south when his car collided with an automobile going north on Highway 45 being driven by one of the appellees, Arlene Johnson. The Johnson car was owned by her husband, T. J. Johnson, one of the appellees; appellees Billy Wayne Johnson and Mary Imogene Johnson were passengers in the car. Appellees filed suit against appellant for damages, claiming that appellant was negligent in failing to yield the right of way, in failing to keep his automobile under control and in failing to keep a proper lookout. There was a jury trial resulting in judgments in favor of appellees in the following amounts: Arlene Johnson, $2,853.23; T. J. Johnson, $790.83; Billy Wayne Johnson, $300.00; and Mary Imogene Johnson, $2,230.40.\nAppellant has appealed to this Conrt seeking a reversal based on two assignments of error, viz.: One, the trial conrt erred in its refusal to direct a verdict in favor of appellant at the close of all the testimony; Two, the trial court erred in refusing to grant a mistrial based on the introduction by appellees of improper testimony. These points will be discussed in the order named after first summarizing the factual background.\nBackground Facts. The accident happened on December 17, 1960 about four miles south of the City of Fort Smith. Highway 45 is a principal traffic artery with a speed limit of 45 miles per hour at the intersection involved. On this occasion appellees, who frequently travelled Highway 45, were travelling north as they approached the intersection. Appellant, the owner and operator of the Downtown Hotel at Fort Smith, was driving his car east on what appears to be a secondary road. As he approached Highway 45 there were three objects on his right side: One was a stop sign, indicating that he should stop before he entered Highway 45; this sign was approximately 20 feet west of the west edge of the pavement on Highway 45. The second object was a telephone pole apparently two or three feet west of the stop sign. The third object was a rather large advertising sign apparently approximately two feet west of the telephone pole. This sign was apparently about four or five feet in length and 11/2 feet in width, hanging .parallel with the secondary road. (The information relative to these objects, their locations and sizes is taken from photographs introduced into evidence by appellees and from oral testimony in the case.)\nIt is the contention of appellees that they were travelling approximately 45 miles per hour (the legal speed limit) as they approached the intersection, and did not see or realize that appellant\u2019s car was attempting to cross the road in time to stop or prevent a collision. It is appellant\u2019s contention that he stopped before entering upon Highway 45 and this is not disputed. He further contends that before he started up he looked to his right and saw no car approaching and then he approached Highway 45 at a speed of five miles per hour, and still seeing no car to his right, he entered upon the highway; that after his car had crossed the center line of Highway 45, the front of appellee\u2019s car struck the right front door of his car.\nOne. The trial court was correct in refusing to instruct a verdict in favor of appellant because, in our opinion, the testimony presented a question of fact for the jury to resolve. The jury found negligence on the part of appellant and we think the record contains substantial evidence to support its finding.\nAppellant\u2019s testimony was substantially as follows: I pulled up within four feet of the intersection and stopped and waited until two or three cars had passed, then I looked and saw no other cars in sight on Highway 45; then I started up at about five miles per hour to cross Highway 45, going not less than 10 miles per hour; when the middle of my car was across the center line of Highway 45, I saw a car coming from the south about 150 feet away; then the collision occurred. Gertrude Beers, aged 29, who was riding with appellant testified that he stopped about two minutes while two cars passed going south; that he then pulled out into the intersection; that she didn\u2019t consciously look to see, but she believed Highway 45 was clear at the time. James D. Mickle, a civil engineer, was the only other witness for appellant. He made a plat or diagram of the intersection. He stated that Highway 45 pavement was 23 feet wide and the stop sign was about 20 feet west of the west edge of the pavement. He also stated that a person standing at the intersection could see a car coming from the south a distance of 465 feet away.\nArlene Johnson, the driver of appellee\u2019s car testified that she was familiar with Highway 45 at the scene of the accident since she drove over it frequently on her way to work in Fort Smith; on this occasion she drove 45 or 50 miles per hour until she came to the caution sign of 45 miles per hour when she reduced her speed accordingly; when she approached the intersection she first saw appellant\u2019s car between the advertising sign and the stop sign; at this time appellant\u2019s car was going slowly \u2014 about five miles per hour \u2014 as it approached Highway 45, and she let up on the gas; when she was about 70 feet from the intersection and saw appellant nearing the edge of the highway without stopping, she applied her brakes and honked her horn, and then the cars collided; the day was clear and sunny. Imogene Johnson, who was in the car with Arlene, testified that when they came over the rise (about 465 feet south of the intersection) she saw appellant\u2019s car near the stop sign approaching the intersection, and when they were within about 85 feet of the intersection she noticed Arlene apply the brakes and blow the horn, and appellant proceeded onto the highway.\nFrom the above it appears there was a conflict in the evidence on a vital point. According to appellant, he stopped two minutes within four feet of the edge of Highway 45, he looked and saw no car in sight, and then he drove onto the highway. Arlene and Imogene Johnson said they saw appellant\u2019s car near the stop sign about 20 feet west of the edge of Highway 45, the car was moving and didn\u2019t stop before entering the highway. The jury had the right to believe appellees\u2019 testimony and disbelieve the testimony of appellant, which they evidently did in this case. It appears to us there are certain facts and circumstances tending to support the jury\u2019s judgment. Gertrude Beers who was in the car with appellant did not corroborate his testimony on the vital point, i. e., that he stopped within four feet of the highway and that he looked for traffic. Also, if the jury believed Arlene and Imogene were able to see appellant\u2019s car even when it was 20 feet from the intersection it had a right to believe appellant could have seen appellee\u2019s car if he did actually look south on the highway when he was within four feet of the intersection. In other words, the jury had a right to conclude appellant failed to exercise due care, either to stop close to the highway or to look for oncoming traffic, or both \u2014 a duty imposed on him under the Court\u2019s Instruction No. 4 given without objection. In this connection, we think the following quotation from Ness v. Males, 201 Md. 235, 93 A. 2d 541, 543, is applicable:\n\u201cWe have held that the statutory obligation to yield the right of way at a stop intersection, imposed upon the unfavored driver, is not discharged by a mere stop but extends to the entire passage across the favored highway, and that the favored driver using a through highway is not required to slow down at an intersection or bring his vehicle under such control as to be able to stop, upon the assumption that an unfavored driver will fail in his duty.\u201d\nTwo. Appellant\u2019s contention that the trial court erred in refusing to grant a mistrial is based on a portion of the record set out hereafter. While appellant was being questioned by appellees\u2019 attorney on cross examination the following occurred:\nBY MB. GABNEB:\n\u2018 \u2018 Q. Two questions: Mr. Shroeder, do you have a room in that hotel that is called the \u2018trick room\u2019?\n\u201cA. No.\n\u201cQ. You don\u2019t get paid $2.00 for every date that\u2019s kept in there?\n\u201cA. We only rent rooms, as far as the hotel management is concerned.\n\u201cQ. Mr. Shroeder, do you want to keep for your own information this rap sheet here. Just stick it in your pocket. I don\u2019t want to even give it to the jury.\u201d\nMr. Dobbs: \u201cWell, if you want to be insinuating you might as well put it in.\u201d\nMr. Garner: \u2018 \u2018 All right, let him read it. \u2019 \u2019\nMr. Wood: \u201cNo, let me see what it is.\u201d\nThen outside of the presence of the jury, the following occurred:\nMr. Dobbs: \"Now I want to make an objection to the insinuation of counsel for plaintiff in this case about a \u2018rap sheet\u2019, and ask for a mistrial because what he has produced is something in his own handwriting. It doesn\u2019t purport to be anything about anybody except what he wants to say.\u201d\nMr. Garner: \"That\u2019s a rap sheet on Frankie Sue Carter. \u2019 \u2019\nMr. Dobbs: \u2018 \u2018 Who made it \u00b6 \u201d\nMr. Garner: \"I did, off of the official records. That\u2019s the woman he was married to and this is the record compiled during the course of their marriage.\u201d\nThe Court: \"On cross-examination, if he wants to ask about these things, but I think it\u2019s unfair to approach it in the way he did \u2014 to leave this innuendo when nobody knows what it is.\u201d\nMr. Garner: \u201c I \u2019ll withdraw it then. \u2019 \u2019\nThe Court: \"And I\u2019ll have to instruct the jury to disregard it.\u201d\nMr. Garner: \u2018 \u2018 That will be all right. \u2019 \u2019\nMr. Dobbs: \"We still request a mistrial, and save our exceptions.\u201d\nThereupon the court gave to the jury the following admonition :\n\"Ladies and gentlemen, counsel just handed to this witness a piece of paper and referred to it as a rap sheet. Now, that paper is not being offered in evidence by counsel. It is therefore my duty to instruct you that it is incompetent, and you are to disregard the sheet having been produced or any reference having been made to it in reaching a decision in this case.\u201d\nAlthough appellant did not ask for a mistrial after the admonition was given to the jury, we think he has properly saved his objection. As previously set out, after the court stated he would admonish the jury, appellant said: \u201cWe still request a mistrial, and save our exceptions\u201d. It would have been a futile thing to repeat the statement after the admonition was given. The trial court could not have been misled as to appellant\u2019s position.\nWe have repeatedly held that the matter of granting or denying a mistrial lies within the discretion of the trial court. See Briley v. White, 209 Ark. 941, 193 S. W. 2d 326. At page 943 of the Arkansas Reports the Court said:\n\u201cMuch latitude must be given to the trial court in handling matters of this kind, and, in the absence of a showing of abuse and discretion or a manifest prejudice to the rights of the complaining party, this court will not reverse a judgment on account of the action of the trial court.\u201d [Cases cited.]\nOn the other hand, we have also held the exercise of such discretion is subject to review. See Vaughan v. State, 58 Ark. 353, 24 S. W. 885; Hughes v. State, 154 Ark. 621, 243 S. W. 70; Kansas City Southern Ry. Co. v. Larsen, 195 Ark. 808, 114 S. W. 2d 1081; and Kansas City So. Ry. Co. v. Murphy, 74 Ark. 256, 85 S. W. 428. In the last cited case, although this Court did not reverse the trial court, it did discuss subject question at length, citing numerous cases, and commented on the applicable governing rules. In so doing, the Court, among other things, said:\n\u201cThere is, however, a class of cases which present argument and remarks so flagrantly prejudicial, or counsel may be so persistent in their impropriety, that the commendable efforts of the trial judge to eradicate the evil effects of them will be unavailing. In such event, then, a new trial is the only way to remove the prejudice, notwithstanding the judge may have reprimanded, or even fined, the offending attorney and positively and emphatically instructed the jury to disregard the prejudicial statements.\u201d\nIn the Vaughan case, supra, the Court said:\n\u201c. . . whenever it occurs to us that any prejudice has most likely resulted ... we shall not hesitate to reverse on that account.\u201d\nIn the case under consideration, as in most situations of this nature, we cannot say with certainty that the jurors were prejudiced by the reference to the \u201crap sheet\u201d, but we are less sure that they were not. Definitely the manner in which the reference was made was improper, and it left open to the jury a broad field of speculation as to appellant\u2019s character and possibly his criminal record. The admonition of the court did not tell the jury what and to whom the \u201crap sheet\u201d referred, and if it had done so the prejudice probably would have been even greater.\nIt is therefore our conclusion that the trial court erred in not granting a mistrial, and its judgment is accordingly reversed, and the cause is remanded.\nMcFaddin, J., dissents as to reversal.", "type": "majority", "author": "Paul Ward, Associate Justice." }, { "text": "Ed. F. McFaddin, Associate Justice,\ndissenting. I dissent as to the reversal. While I dislike the courtroom tactics about the \u201crap sheet\u201d, nevertheless, I can not say that the Court\u2019s admonition to the jury was ineffectual to remove the harm. The modest verdicts received by the appellees indicate rather strongly that the Court\u2019s admonition did remove the harm about the \u201crap sheet\u201d. Therefore, I would affirm the judgments herein.", "type": "dissent", "author": "Ed. F. McFaddin, Associate Justice," } ], "attorneys": [ "G. Byron Dobbs and J. Sam Wood, for appellant.", "Sexton & Morgan and Charles R. Garner, Thomas A. Pedron, for appellee." ], "corrections": "", "head_matter": "Shroeder v. Johnson.\n5-2541\n352 S. W. 2d 570\nOpinion delivered January 8, 1962.\nG. Byron Dobbs and J. Sam Wood, for appellant.\nSexton & Morgan and Charles R. Garner, Thomas A. Pedron, for appellee." }, "file_name": "0443-01", "first_page_order": 465, "last_page_order": 472 }