Opinion
No. 29289.
March 9, 1931.
APPEAL AND ERROR.
Error in instructions is harmless, where verdict of jury is clearly right, especially where different result on another trial is improbable.
APPEAL from circuit court of Alcorn county. HON.C.P. LONG, Judge.
Thos. H. Johnston, of Corinth, for appellant.
It was not necessary, in order to entitle plaintiff to recover in this case that he prove by a preponderance of the evidence that the defendant was reckless, as is charged in instruction No. 2, given at the instance of the defendants.
3 Bouvier's Law Dictionary 2841; Kansas Pac. Ry. Co. v. Whipple, 39 Kan. 531, 18 P. 730; Harrington v. Los Angeles Ry. Co., 63 L.R.A. 238, 140 Cal. 514, 74 P. 15.
The plaintiff cannot be charged with negligence in not anticipating and guarding against a danger of which he knew nothing, there being nothing to indicate and show the intersecting road until almost opposite the same, as is charged in defendant's instruction No. 3. This is not ordinary care.
Bresee v. Los Angeles Trac. Co., 5 L.R.A. (N.S.) 1059, 149 Cal. 131, 85 P. 152; Parks v. C.C. Yost Pie Co., L.R.A. 1915C, 179, 93 Kan. 334, 144 P. 202; Stedman v. O'Neil, 22 L.R.A. (N.S.) 1229, 82 Conn. 199, 72 A. 923.
The evidence being undisputed that defendant failed to sound warning of his approach to crossing; and that he saw plaintiff's car approaching at rapid rate just as he was about to enter the highway and attempted to cross in front of him but miscalculated, although plaintiff might have been guilty of contributory negligence, plaintiff was entitled to recover under second count, and the verdict of the jury is contrary to the evidence and the law.
Morrell Packing Co. v. Branning, 124 So. 356.
W.C. Sweat and Conn Conn, all of Corinth, for appellees.
All the instructions must be construed together, as this court has repeatedly held.
In the Mississippi case of Flint v. Fondren, 122 Miss. 248, this court lays down the law applicable to a driver approaching a curve in the road, and no reservation is made for the driver who does not happen to know the location of the curve.
2 R.C.L., 1184, sec. 19.
The negligence of the driver of an automobile is not limited or bounded by the extent of his knowledge of the highways being used is clearly implied in the opinion in the case of Ulmer v. Pistole, 115 Miss. 485.
Instead of the facts showing negligence on the part of the truck driver, they show conclusively that this plaintiff's injury was the result of his own negligence.
In view of all considerations will this court not say at the very least, that it was for the jury to say whether or not this truck driver was guilty of any actionable negligence.
Appellant brought this action in the circuit court of Alcorn county against appellees, a partnership composed of A.E. Ray and T.H. Ray, for damages for injuries sustained by him and the car driven by him, in a collision between his car and a truck being driven by the said A.E. Ray, the injuries alleged to have been caused by the negligence of the latter. There was a trial, resulting in a verdict and judgment for appellees, from which judgment appellant prosecutes this appeal.
Appellant was driving southward in his automobile from Corinth to Baldwin in this state, on the Gulf Highway. A.E. Ray, a member of appellee firm, who was engaged in the partnership business of the firm, was driving a truck loaded with five bales of cotton, coming out of a byroad from the west, entering the Gulf Highway. After the truck got into the Gulf Highway, appellant ran his car into it, injuring himself and his car.
Appellant's evidence was sufficient to make the question of liability an issue for the jury. However, the evidence tending to show negligence on the part of appellees, proximately contributing to the injury, was weak; while the evidence in support of non-negligence on the part of appellants was very strong and convincing — in fact, overwhelming.
Notwithstanding the fact that the court gave two instructions for appellee which were perhaps erroneous, nevertheless the judgment ought to stand, because it is apparent from the whole record that the verdict was right on the facts of the case.
A new trial will not be granted because of erroneous instructions, if the verdict of the jury be plainly and clearly right, according to the law and the justice of the case; and especially where there is little prospect of a different result being reached on another trial. Hill v. Calvin, 4 How. 231; Pritchard v. Myers, 11 Smedes M. 169; Wiggins v. McGimpsey, 13 Smedes M. 532; Magee v. Harrington, 13 Smedes M. 403; Baskins v. Winston, 24 Miss. 431; Simpson v. Bowdon, 23 Miss. 524; Brantley v. Carter, 26 Miss. 282; Dozier v. Ellis, 28 Miss. 730; Fore v. Williams, 35 Miss. 533; Cameron v. Watson, 40 Miss. 191; Perry v. Clarke, 5 How. 495; Barringer v. Nesbit, 1 Smedes M. 22; McMullen v. Mayo, 8 Smedes M. 298; Head's Case, 44 Miss. 731; Evan's Case, 44 Miss. 762; Hanks v. Neal, 44 Miss. 212; Memphis C.R. Co. v. Whitfield, 44 Miss. 466, 7 Am. Rep. 699.
We think this case comes within those principles. The great preponderance of the reasonable evidence showed that appellant's injury was caused solely by his own negligence, and not because of any negligence on the part of appellee. The challenged instructions, therefore, were harmless; they could not have misled the jury.
Affirmed.