The majority has held that the traffic ordinance of the city of North Little Rock introduced in evidence does not differ materially from the state traffic statute. With this holding, I am in accord.
The majority has further held that instructions Nos. 9 and 9 1/2, given at the request of appellee, are correct instructions. To this holding, I cannot agree.
The court in said instruction No. 9 1/2 told the jury: "So in this case if you find that the automobile of the plaintiff and the bus of the defendant were approaching each other on the same street or highway, going in opposite directions, and the plaintiff undertook to and did start to turn off of said street into Locust Street and to his left and did not run beyond the center of the intersection of said streets before turning his automobile to the left, and that such act on the part of the plaintiff contributed to or caused the injuries and damage he sustained, if any, then plaintiff cannot recover and your verdict will be for the defendant."
Instruction No. 9 did not differ materially from instruction No. 9 1/2. Both were to the effect that if appellant violated the city ordinance and this violation contributed to his injury, he could not recover. Hence, the effect of each of the instructions was to make a violation of the city traffic ordinance negligence per se. This court has many times held that violations of a city traffic ordinance, as well as violations of the state traffic statute, do not constitute negligence per se, but that such violations are only prima facie evidence of negligence.
In the case of White Co. v. J. E. Thompson Motor Express Co., 182 Ark. 71, 29 S.W.2d 674, this court said: "It is finally insisted that the court erred in refusing to give its requested instruction No. 5, which would have told the jury that if its truck was being driven at a lawful rate of speed and that it was the first truck to enter the intersection, its truck had the right-of-way `and it was negligence on the part of plaintiff's driver to drive into the intersection in front of the defendant's truck.' The court correctly refused this instruction. It was inherently wrong in telling the jury that, if appellant's truck reached the intersection first, it was negligence for *Page 112 the driver of the other truck to attempt to pass in front of him, without taking into consideration the other facts and circumstances in the case, and it was in conflict with instruction No. 1, already discussed." Citing, Mays v. Ritchie Gro. Co., 177 Ark. 35, 5 S.W.2d 728; Pollock v. Hamm, 177 Ark. 348, 6 S.W.2d 541; Herring v. Bollinger,181 Ark. 925, 29 S.W.2d 676.
In the case of Herring v. Bollinger, 181 Ark. 925,29 S.W.2d 676, the court had under consideration an instruction which told the jury that if the defendant was operating his automobile in a residential district at a speed greater than twenty miles per hour and such speed was the proximate cause of the collision and damages, the jury should return a verdict for plaintiff. This court held said instruction erroneous, in that it made the violation of the traffic law negligence per se, instead of leaving to the jury the question of whether such violation was negligence.
In the case of Hammond v. Hamby, 191 Ark. 780,87 S.W.2d 1000, this court said: "According to the statement made in Huddy's Enc. on Automobile Law, Vol. 3-4, page 61, the great weight of authority is to the effect that a violation of the statute such as the above is negligence per se, but in this state the rule is that it is not negligence per se, but is evidence of negligence (Mays v. Ritchie Gro. Co., 177 Ark. 35-37, 5 S.W.2d 728), which casts upon the defendant the burden of proof to establish a compliance with the rule of conduct fixed by the statute, and which would be ordinary care within its meaning." Citing, Herring v. Bollinger, 181 Ark. 925,29 S.W.2d 676.
In its brief, appellee, speaking of its alleged negligence and the alleged contributory negligence of appellant, makes the following admission: "The evidence adduced was sharply conflicting on these two issues and tended to show on behalf of the appellant that he was operating his automobile in a prudent manner and was not guilty of negligence, while the bus of the appellee was being driven at an unusual and excessive rate of speed. That appellant had the right of way at the street intersection where the accident occurred and that the collision *Page 113 resulted from the fact that appellee's driver disregarded the fact that appellant had the right-of-way."
If appellee is correct in this statement, and we believe it is, the case was one for the jury and it was important that the jury be properly instructed by the court in order that it might arrive at a proper conclusion.
Since the two instructions under consideration clearly made a violation of the city traffic ordinance negligence per se and not merely prima facie evidence of negligence, the instructions were inherently erroneous and, being prejudicial, the judgment of the court should be reversed.
MEHAFEY and HUMPHREYS, JJ., join in this dissent.