Moore v. Rye

John A. Fogleman, Justice,

dissenting in part, concurring in part. My dissent is directed to one point only. It seems to me that this case presents one of those exceptional cases, in which the unavoidable accident instruction should be given. It was recognized in Houston v. Adams, 239 Ark. 346, 389 S.W. 2d 872, that there are such cases.

There is testimony from which a jury would be warranted in finding that this unfortunate incident was an unanticipated and unexpected occurrence which no reasonable person would have foreseen and for which no one is to blame. This, then, would be an unavoidable accident. St. Louis-San Francisco Ry. Co. v. Bryan, 195 Ark. 350, 112 S.W. 2d 641. Because the infant could not be guilty of negligence, the occurrence could well have been found to have occurred without negligence on the part of either party. This, in my opinion, would bring the facts within the exceptional circumstances which would make the occurrence an unavoidable accident. Caldwell v. McLeod, 235 Ark. 799, 362 S.W. 2d 436. The instruction should be given when there is evidence tending to prove that the injury resulted from some cause other than the negligence of the parties. Elmore v. Dillard, 227 Ark. 260, 298 S.W. 2d 338; Rhoden v. Lovelady, 239 Ark. 1015, 395 S.W. 2d 756. If a case, in which the sole proximate cause is the unpredictable and unanticipated action of a child, does not fall into the category of an unavoidable accident, then I doubt that any case can.

Certainly the giving of the instruction would not be error, even if it could be said that its refusal would not have been error. I concur in the opinion as to all other points.