Summary
In Ferguson, the Mississippi Supreme Court held that "the jury was not required to accept, in its entirety, the theory of either party, and it was its duty to consider all the testimony of the witnesses in the light of the physical facts and the circumstances shown, and to determine therefrom the negligence, if any, of the respective parties."
Summary of this case from McLaughlin v. N. Drew Freight, Inc.Opinion
No. 41548.
November 14, 1960.
1. Motor vehicles — collision — negligence — contributory negligence — instructions.
In action arising out of collision between plaintiff's eastbound automobile and defendants' truck, which was negotiating right turn so as to proceed south at intersection, evidence of plaintiff's negligence with respect to lookout and control was sufficient to warrant instruction on contributory negligence. Secs. 1454, 1455, Code 1942.
2. Negligence — motor vehicles — collision — contributory negligence — jury warranted in diminishing plaintiff's damages.
In such case, evidence of plaintiff's negligence with respect to lookout and control warranted jury's attributing a large part of plaintiff's loss and injury to his own negligence, and in diminishing damages accordingly. Sec. 1454, Code 1942.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Bolivar County; ED H. GREEN, JR., Judge.
Smith, O'Hara Smith, Cleveland, for appellant.
I. The damages awarded to appellant is against the overwhelming weight of the evidence and wholly inadequate and manifests bias and prejudice on the part of the jury. Flournoy v. Brown, 200 Miss. 171, 26 So.2d 351; Green v. Hatcher, 236 Miss. 830, 105 So.2d 624; Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487; Long v. Magnolia Hotel Co., 230 Miss. 655, 111 So.2d 645; Swartzfager v. Southern Bell Tel. Tel. Co., 236 Miss. 322, 110 So.2d 380.
II. It was reversible error for the trial court to give appellees' instruction No. 2 dealing with contributory negligence because appellant was not guilty of such negligence. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Rivers v. Turner, 223 Miss. 673, 78 So.2d 903; Wells v. Bennett, 232 Miss. 736, 100 So.2d 344.
III. Appellees' instructions Nos. 4 and 5 state erroneous rules for the guidance of the jury to determine compensation to be awarded to appellant as damages. Harris v. McMullen, 212 Miss. 382, 54 So.2d 544; Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426.
IV. All measurements of conditions should be confined to time of accident. Johnson v. Howell, 213 Miss. 195, 56 So.2d 491.
V. Instructions must apply to facts; where part of instruction is good and part is bad, the entire instruction is bad. J.W. Sanders Cotton Mill v. Moody, 189 Miss. 284, 195 So. 683; 53 Am. Jur., Sec. 579 p. 455.
VI. The admitting of the depositions as evidence of Paul Gaither and Claude Gatlin offered by appellees purporting to prove an improper license tag on appellant's truck used in his hauling business, and an improper inspection of the truck was error and should cause a reversal and remand of the case. Howard v. Lebby, 197 Ky. 324, 246 S.W. 828, 30 A.L.R. 830; Levinson v. Cox, 127 Miss. 250, 90 So. 1; Secs. 8275, 9352-51, Code 1942.
Charles C. Jacobs, Jr., Cleveland, for appellees.
I. Reply to appellant's first assignment of error that damages awarded him were inadequate and manifest passion or prejudice on part of the jury. Dixon v. Breland, 192 Miss. 338, 6 So.2d 122; Faulkner v. Middleton, 186 Miss. 355, 188 So. 565, 190 So. 910; Flournoy v. Brown, 200 Miss. 171, 26 So.2d 351; Green v. Hatcher, 236 Miss. 830, 105 So.2d 624; Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487; Long v. Magnolia Hotel Co., 236 Miss. 655, 111 So.2d 645; Montgomery Ward Co. v. Windham, 185 Miss. 848, 16 So.2d 622, 17 So.2d 208; Swartzfager v. Southern Bell Tel. Tel. Co., 236 Miss. 322, 110 So.2d 380; White v. McCoy, 200 Miss. 178, 7 So.2d 886.
II. The fixing of damages is a province of the jury and the jury's verdict will not be disturbed unless it is apparent that such verdict was a result of passion, prejudice or corruption. Aponaug Mfg. Co. v. Carroll, 183 Miss. 793, 184 So. 63; Brown Root, Inc. v. Continental Southern Lines, Inc., 228 Miss. 15, 87 So.2d 926; Chapman v. Powers, 150 Miss. 687, 116 So. 609; Canale v. Jones, 228 Miss. 317, 87 So.2d 694; J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779; Reed v. Eubanks, 232 Miss. 27, 98 So.2d 132; Shelton v. Underwood, 174 Miss. 169, 163 So. 828.
III. The amount of the jury award in the instant case involves the determination and application of the following factors by the jury. (1) determining amount of damages suffered by appellant, (2) determining whether or not there was contributory negligence on part of appellant, (3) determining the comparative negligence of the appellant (plaintiff) and appellee, (4) application for comparative negligence finding to the amount of damages suffered by appellant. Campbell v. Willard, 205 Miss. 783, 39 So.2d 483; Secs. 1454, 1455, Code 1942.
IV. Answer to appellant's argument that appellees' instruction No. 2, dealing with contributory negligence, was reversible error. Cinderella Foods v. Miller, (Miss.), 52 So.2d 641; Alexander's Mississippi Jury Instructions, Sec. 3514 p. 164.
V. Answer to appellant's contention that instructions numbers 4 and 5 were erroneous. Cumberland Tel. Tel. Co. v. Jackson, 95 Miss. 79, 48 So. 614; Howell v. George, 201 Miss. 783, 30 So.2d 603; Meridian Star v. Kay, 211 Miss. 536, 52 So.2d 35; Mississippi Cent. R. Co. v. Magee, 93 Miss. 196, 46 So. 716; St. Louis-San Francisco R. Co. v. Dyson, 207 Miss. 639, 43 So.2d 95; S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650, 68 A.L.R. 167; Alexander's Mississippi Jury Instructions, Sec. 1673 p. 394.
VI. No error was made by the Court in admitting depositions of Paul Gaither and Claude Gatlin as contended by appellant. Hearndon v. Bryant, 39 Miss. 335; Levinson v. Cox, 127 Miss. 250, 90 So. 1; Pearce v. Tharp, 118 Miss. 107, 79 So. 69; Ratliff v. Thompson, 61 Miss. 71; Sec. 1709, Code 1942.
The appellant, Ray Ferguson, brought this suit in the Chancery Court of the Second Judicial District of Bolivar County against C.E. Denton and others, a partnership doing business as Denton Manufacturing Company, to recover damages for personal injuries, medical and hospital bills, and for loss of income due to his injuries. The jury returned a verdict for $1,000, and from this judgment the appellant appeals.
This suit is the result of a collision between an automobile driven by appellant and a truck owned by appellees and being driven by one James L. Kemp. The accident occurred on September 8, 1958, about 11 o'clock A.M., on a clear day in the Town of Boyle, at or near a point where State Highway No. 446 intersects Sobriesky Street. The appellant was traveling east in the automobile. The truck had been parked near the curb northeast of Highway 446. He had backed up and was making a right turn to proceed south across the highway when the collision occurred. The truck was 25 feet long, 8 feet wide, and 9 feet high, and was a refrigerated ice cream truck, painted white. According to the testimony of Kemp, his directional or blinker light indicating a right turn was on.
The declaration charged that the collision was due to the gross negligence of Kemp in pulling the truck into the highway. The answer of the appellee alleged that the sole cause of the collision was due to the negligence of Ferguson, who failed to keep a proper lookout and failed to have his automobile under proper control.
(Hn 1) Ferguson appeals as to damages, and contends that the damages awarded appellant were against the overwhelming weight of the evidence and so inadequate as to manifest bias and prejudice on the part of the jury. He also assigns as error and argues that it was reversible error for the trial court to give the appellee an instruction on contributory negligence under our comparative negligence statute, Section 1454, Mississippi Code of 1942, for the reason that the appellant Ferguson was not guilty of negligence. With this statement we do not agree. This instruction was justified under the pleadings and the evidence. Under the appellant's own testimony, he was guilty of negligence in not keeping a proper lookout and in not having his car under proper control. The evidence shows that when he entered Highway 446 west of Sobriesky Street, he had a clear view of the highway as he was traveling east. His testimony was that he did not see the truck move and did not see it until it was within a few feet of him when it struck his automobile in the left side. According to the testimony of Kemp, the driver of the truck, he had not reached the center line of the highway, and he did not hit the automobile, but the automobile hit his front fender and bumper. A plat and a large number of photographs were introduced in evidence. Thus it is seen that the appellant, the driver of the automobile, and Kemp, the driver of the truck, each testified that the wreck was caused solely by the negligence of the other. The testimony as to the negligence of the respective parties, the drivers of the vehicles, was sharply conflicting. We are of the opinion that this was a typical case for the determination of the jury, particularly in view of Section 1455, Volume 2 Recompiled, Mississippi Code of 1942, which provides as follows: "All questions of negligence and contributory negligence shall be for the jury to determine."
The appellant testified that he suffered serious personal injuries as a result of the accident and that he incurred medical and hospital bills in the amount of $1032. Without detailing the various injuries he complained of, his physician, Dr. O.E. Ringold, testified, and his statement in general was this: ". . . . that he has no permanent injury and he is slowly progressing. It may take some months, it may take a year, before he is completely recovered;" that he was suffering from a tissue bruise — a tissue hurt.
The Court, in the case of Morrell Packing Company, et al. v. Branning, 155 Miss. 376, 124 So. 536, with reference to an instruction based on our comparative negligence statute, said:
"The fact that the driver of each of the automobiles involved in the collision testified that it was caused solely by the negligence of the other does not render an instruction based on our Comparative Negligence Statute (Hemingway's Code 1927, Section 516) inapplicable or erroneous. The jury was not required to accept, in its entirety, the theory of either party, and it was its duty to consider all the testimony of the witnesses in the light of the physical facts and the circumstances shown, and to determine therefrom the negligence, if any, of the respective parties."
(Hn 2) We are of the opinion that the jury was warranted in finding under the evidence in this case that a large part of the negligence contributing to appellant's loss and injury was his own negligence, and that the jury was warranted in diminishing the damages accordingly.
Affirmed.
McGehee, C.J., and Kyle, Ethridge and Gillespie, JJ., concur.