1052 BEAN V. COFFEE. [169
BEAN V. COFFEE. Opinion delivered December 7, 1925. MUNICIPAL CORPORATIONS.—The law' of the road does not apply to private propertY. 2. MUNICIPAL CORPORATIONS—NEGLiGENCE—INSTRUCTION.—In an action for personal injuries, an instrUction that, if plaintiff was : on private•property at the time he received the alleged injury, he should,not be found guilty of negligence in stopping his team on the left side of a private ; alley was properly denied, the question of negligenCe in such case being for the jury. 3.' NEw TRIAL—PREPONDERANCE OF' EVIDENCE.—Where the trial'court found that the verdict of the jury was contrary to the prepon-• der.ance ; of the evidence, it is reversible error, for him thereafter to refuse to set the verdict aside. • Appeal from Johnson 'Circuit 'Court; J. T: Bullock, Judge ; reversed. . • Hugh Basham and G. , 0. Patterson, for appellant. •• Jesse Reynolds, for appellee. SMITH, J. 'Appellant, who was the plaintiff tbeloW, brought suit to recover compensation for a personal •injury which he sustained by reason of the alleged negligence of apPellee, the defendant below, in driving his automobile within a few feet of appellant's team, hitched to a hack, underwhich appellant was at the time engaged in making some repair. The hack and team 'were standing at the time on the left side Of a private alley back of a store in the.city of Clarksville, and it was insisted that this was negligence on the part of the plaintiff which contributed to his injary. Dealing with this question, the plaintiff asked, but the court refused to give,
ARK:] BEAN V. COFFEE. 105$ an instruction numbered 4 reading as fellows : •"YOu are instruCted that the' • laW • of • the" road :requiring ' the driver • of : a 'vehicle along the , pUblie : higliway ; te : turn to •he 'right on 'meeting anOther vehicle ulion way applies only to drivers •uPon the : highWayi , and would not apply to private property at or • neat the highway. If you find from the evidence in this case that the plaintiff, at the : tiine . of 'his alleged ihjury, .Was :net : .on the highway but Was on private proPerty,l5uthad-stoptied his team on . private property, even though : he was ,dn the left of the highway, he would not *be .guiltY negli-Once in so doing:"'• • • /: • • It is insisted that the refusal to • give thi , s instruc-- lion Was error, and 'that it • annouiices the• ,cohtrollink lekal principle in the case.. • • This instructien contains• twe sentenees; the . ,first of which correctly states the law to be that the law' Ofithe road dees - not apply to private Property. But' we think it,was hot error to' refuse this instructioh, for , the reason that the last sentence in the instructiOn• makes . ali. iiicor-reet application of the correct statement of the law 'contained in the first sentenc,e. This is true because the instruction, read as a whole, told the jury, as a matter of law, that it was . .nothegligeace . for . plaintiff to stop his hack on the left side of the alley. Under the circumstances of' the case thiS' question • Of neglikence should have beem submitted to-. the jury: . ether. words. 'although the statute •(§ 7433; •Digest). 'did not 'apply and : define the respeCtive rights and diltie's 'Of the parties, it was :still a , questieh of . faCt . 'for the .jury,i and not .ohe of law for the •court, ;whether. it : Was hegligence for plaintiff to stop his .hack•on. the.left side of- the. alley. 'The alley did nOt • belong to either' the plaintiff or the defendant, 'kit 'was privately': Owned, -although' , " there appears to have been a permissiVe use ()fifth seine extent by the tnilplid. In overruling the motion for a new trial, the .Qourt said:. -"I am of the opinion that the verdict 'of the jury is contrary - to the• weight 'of the evidence, • and I• feel
like plaintiff should have a verdict, but a jury has passed on the .matter, and I am not going to disturb their verdict." In view of this finding by the court a new trial should have been granted. The duty of the trial court, when it is believed and found that the verdict returned is contrary to the preponderance of the evidence, was thoroughly considered by us in the case of Twist v. Mu 126 Ark. 427, and we need not repeat here what we there said. A syllabus in that case reads as follows : "Where the trial court finds positively and unequivocally that the verdict of the jury is against the preponderance of the evidence, it is reversible error for him thereafter to fail to set aside the verdict." See also Spadra Creek Coal Co. v. Callahan, 129 Ark. 448; Spadra Creek Coal Co. v. Harger, 130 Ark. 374 ; Mueller v. Coffman, 132 Ark. 45; Wilhelm v. Collison, 133 Ark. 166 ; Pettit v. Anderson, 147 Ark. 468. For the error in refusing to grant a new trial in view of the court's finding as to the weight of the evidence, the judgment will be reversed, and the case remanded for a new trial.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.