#### Evans v. Merritt.

Opinion delivered April 4, 1896.

Appeae — Instruction—Harmeess Error. — A judgment will not be disturbed on appeal because of an erroneous instruction if the verdict upon proper instructions could not have been otherwise.

.Appeal from Garland Circuit Court.

Alexander M. Dueeie, Judge.

W. H. Martin, for appellant.

Murfhy & Menkus, for appellee.

Bunn, C. J.

This is a suit for damages for personal injuries done by driving into and against *229plaintiff’s vehicle, overturning the same, and throwing him out, -and severely' wounding and bruising him. The defendant Evans, and one John Breese, were both in the single-horse buggy of defendant, and both somewhat, if not very much, intoxicated at the time; Breese actually holding the reins and driving. The contention of appellant is mainly to the effect that the court erred in giving instruction “B” on its own motion, having reference to the responsibility of one or both of the men in the buggy for the injury. We are of the opinion that said instruction was erroneous, but that the evidence fully sustained the verdict, — that, in fact, it should not have been otherwise, — and therefore the judgment is affirmed.