The opinion
Paul Ward, J., dissenting. In my opinion the lower court committed reversible error in failing to give appellant’s requested instruction No. 9.
In appellant’s amended and substituted answer, it was stated: “She (appellee) failed to use the hand supports which are for the use of passengers leaving through the rear door of the bus.” Appellant’s superintendent testified as follows: “We have a number of vertical stanchions around that door, but the main hand hold is a vertical stanchion that is fastened to the bottom just immediately in front of the rear door which would be to the passengers left.”
As indicated above appellant requested but the court refused to give the following instruction:
“You are instructed that if you find that plaintiff failed to use the hand supports provided at the rear exit of the bus for the use of passengers in departing from said bus and that a person of ordinary care and prudence would have used these hand supports, and that the failure to use said supports on the part of the plaintiff resulted in her falling from the bus and receiving injuries alleged in her complaint, then you should find for the defendant, Capital Transportation Company.”
The court gave no other instruction covering the matter mentioned above. It is conceded that the court did give proper instructions on the general law of contributory negligence’. From 38 Am. Jur. 1071 , under the heading of “Instructions to Jury,” we quote as follows:
“The court should, however, clearly and concisely define the issues as presented by the pleadings and the proof, and state the correct principles of law applicable thereto as defined in the foregoing discussion of the substantive law of negligence. The particular matters to be covered in the instructions depend upon the issues joined by the pleadings and supported by the evidence; they should cover all the issues that are properly raised for determination.”
In the case of St. L. & S. F. Ry. Co. v. Crabtree, 69 Ark. 134 , 62 S. W. 64 , involving a railroad crossing accident, it was testified by the plaintiff that he stopped, looked and listened and the court instructed the jury properly that it was his duty to do so. The defendant requested that the court instruct the jury that it was the plaintiff’s duty to look in both directions but the court refused. This court held this constituted reversible error, using this language: “It is therefore error for the trial judge to refuse to give a specific instruction correctly and clearly applying the law to the facts of the case, even though the law is in a general way covered by the charge given, unless the court can see that no prejudice resulted from such refusal. ’ ’
In the case of Hamilton-Brown Shoe Co. v. Choctaw Mercantile Co., 80 Ark. 438 , 97 S.W. 284 , although the facts were different the same rule was applied by the court in these words:
“It is error to refuse to give a specific instruction correctly and clearly applying the law to the facts of the case even though the law in a general way is covered by the charge given, unless it appears that prejudice has not resulted. ’ ’
I am not willing to say that no prejudice resulted to appellant because of the court’s failure to give instruction No. 9. The better view is that expressed by the court in Western Coal & Mining Co. v. Buchanan, 82 Ark. 499, at p. 503 , 102 S. W. 694 , where the court said:
“It cannot be said in this case that no prejudice has resulted because appellant’s whole case in concrete form has not gone to the jury, and it is impossible to tell what weight the jury would have given to appellant’s testimony unless it was fairly submitted for their consideration under appropriate instructions. The court has no discretion to withhold instructions appropriate to any theory of the cause sustained by competent evidence.”
The case of Nebraska Underwriters Ins. Co. v. Fouke, 90 Ark. 247 , 119 S. W. 261 , involved the question of negligence in using a blow lamp or torch to remove paint from a dwelling. The evidence showed that it was on a windy day and the court refused an instruction embodying that element. This court held this failure on the part of the lower court to give such instruction was error, using this language:
“The refused instruction was a specific one; no other was given on the subject, and it was prejudicial error to refuse it. The court gave general instructions to the effect that the defendant would be liable if the fire resulted from the use of the blow lamp, and the employee failed to exercise care in its use; the plaintiff was entitled to have a specific instruction on the subject.”
An instruction much like the instruction No. 9 requested by appellant herein was given and approved by this court in the case of Missouri Pacific Transp. Co. v. Robinson, 191 Ark. 428 , 86 S. W. 2d 913 . The court’s language at page 430 and 431 is as follows:
“In the instant case the court instructed the jury that, if the plaintiff failed to exercise ordinary care to use the appliances furnished by the carrier, and such failure to use ordinary care caused or contributed to ■the cause of the injuries to the plaintiff, injuries of which the plaintiff complained, then she could not recover.”
The word “appliances” used above referred to “hand holds” that passengers might take hold of in alighting or boarding the bus.