Elmore v. Dillard

Ed. F. McFaddin, Associate Justice

(dissenting).

I would reverse the judgment and remand the case for a new trial as to all the parties. My study of the case convinces me of three matters:

(1) The Trial Court committed error in directing a verdict in favor of the two Buick agencies. A question of fact was made for the jury as to whether Zacharias and Howard Elmore were fellow servants. The majority does not decide this point; but I think it is fundamental.

(2) The Trial Court committed error in giving the instruction on contributory negligence. There was no evidence whatsoever on contributory negligence and the majority fails to point out any such evidence;

(3) The Trial Court committed error in its instruction as to speed. While § 75-601 Ark. Stats, says that under some circumstances the speed is 60 miles an hour, yet the same statute also recognizes that the speed may be regulated by appropriate signs along the highway. Here is a portion of the Statute as to such speed:

“. Outside municipalities the stated speed as determined by the State Highway Commission (Commissioner of Revenue) upon the basis of an engineering and traffic investigation, which shall be effective when appropriate signs giving notice thereof are erected along the highway ...”

The witness Cruse was a maintenance man of the Highway Department, and he said that the speed was 55 miles per hour at night at the place where this mishap occurred. In view of the fact that the speed may be regulated by posted signs and that Cruse was a maintenance man and was testifying as to the speed, I think it clear that the evidence showed that the speed at the place of this mishap was 55 miles an hour at night. Therefore, the Court committed reversible error in instructing the jury that the speed was -60 miles an hour.

In view of the foregoing, I respectfully dissent from the affirmance.