Ray v. Murphy

John I. Purtle, Justice, dissenting. I disagree because I think the erroneous instruction was prejudicial. We do not know what impact it may have had on the jury. Unless there is a causal connection between the violation of a statute and the injury, the instruction should not be given. Riddell v. Little, 253 Ark. 686 , 488 S.W.2d 34 (1972). There was no such connection shown in this case. Abstract instructions tend to confuse and mislead the jury. 75 Am. Jur. 2d Trial § 645 (1974). Any error is presumed prejudicial unless the appellate court can say with assurance that it was harmless. Wallin v. Insurance Company of North America, 268 Ark. 847 , 596 S.W.2d 716 (1980).

When an error is shown in an instruction which was given it is presumed prejudicial until the opposite is established. Safeway Stores, Inc. v. Gross, 240 Ark. 206 , 398 S.W.2d 669 (1966). In Gross we stated: “In the case at bar, because of the general verdict it cannot be shown that the error was harmless; so, in line with our cited cases, we must presume that the error in the instruction was prejudicial; and for that reason the judgment is reversed and the cause remanded.”

The general verdict form presented to the jury gave them no guidance. Had the case been presented on interrogatories we would have been able to determine whether the error was harmless. The verdict simply stated: “We, The Jury, find that Mrs. Murphy is not guilty of negligence as charged.” The complaint charged Mrs. Murphy with all the negligence or 100%. In my opinion the jury may have meant to find she was not guilty of 100% of the negligence. To say the least, I cannot say with certainty that the instruction was harmless. It may have been and again it may not. I would remand for a new trial.