Opinion
No. 43559.
June 7, 1965.
1. Motor vehicles — speed of travel — not proximate cause of collision — evidence — no negligence shown as against driver of tractor-trailer.
Testimony that tractor-trailer was traveling at estimated speed of thirty-five miles per hour did not show negligence; and, in any event, speed was not proximate cause of collision which occurred when oncoming pickup truck, after hitting rear of stopped, third vehicle, was thrown, knocked or swerved into the lane of traffic of tractor-trailer as tractor-trailer left one-lane bridge.
2. Trial — joint defendants — peremptory — without designating defendants who were liable — reversible error.
In automobile negligence case, instruction to return verdict for plaintiffs, and that verdict should be against such defendants as were guilty of negligence contributing to injury and death, was objectionable as a peremptory, without designating defendants who were liable, and giving of such instruction was reversible error.
3. Trial — joint defendants — conflicting evidence — particular defendant entitled to jury trial — peremptory — misleading.
Where evidence bearing upon liability of particular defendant in automobile negligence case was in sharp conflict, such defendant was entitled to trial without peremptory instruction for plaintiffs, since the peremptory was misleading and tended to place all the defendants in same category.
4. Trial — joint defendants — peremptory — Court may designate which defendant is liable as a matter of law.
Plaintiff is not entitled to a peremptory instruction unless, and until, Court can designate which defendant is liable as matter of law.
5. Trial — joint defendants — peremptory — without designating defendants who were liable — not cured by instruction relating to form of verdict.
Error in giving a peremptory instruction for plaintiffs, without designating which defendant or defendants were liable, was not cured by instructions relating to form of verdict, which, read with the peremptory instruction, tended to support argument that peremptory instruction required finding against more than one defendant.
6. Trial — joint defendants — peremptory — unavoidable accident instruction — conflicting and confusing.
In case in which Court had peremptorily instructed jury to find for plaintiffs, unavoidable accident instruction merely conflicted and tended to confuse.
7. Motor vehicles — instructions — guest not guilty of negligence.
In wrongful death action, instruction was proper insofar as it stated that decedent, who was a guest in the motor vehicle, was not guilty of negligence; but it should have stopped at that point.
8. Motor vehicles — instructions — assuming driver of truck failed to keep reasonable lookout to rear, improper.
Whether driver of truck failed to keep a reasonable lookout to the rear of tractor-trailer was question for jury, and instructions should not have assumed such failure.
9. Trial — instructions — confusing — substantially same matter submitted in another instruction, properly refused.
Where last sentence of requested instruction was confusing, and substantially same matter was submitted in another instruction, there was no error in refusing requested instruction.
10. Trial — instructions — embodying matter not essential to a recovery, properly refused.
Requested instruction requiring that jury, before it could return verdict for plaintiffs, believe that driver of unit passed pickup truck was properly refused where such passing was not essential to recovery.
Headnotes as approved by Jones, J.
APPEAL from the Circuit Court of Lauderdale County; ARLO TEMPLE, J.
Floyd, Cameron, Deen Prichard, Meridian; Warner Beard, Jr., Laurel, for appellant, Miller Transporters, Ltd.
I. The lower court erred in overruling this appellant's motion for new trial because the verdict of the jury was against the weight of the evidence. The jury manifestly failed to respond to reason, and the lower court erred in overruling this appellant's motion for directed verdict. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Dunn v. Butler, 252 Miss. 40, 172 So.2d 430; E.I. DuPont De Nemours Co. v. Ladner, 221 Miss. 378, 73 So.2d 249; Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; Louisville N.R. Co. v. Daniels, 135 Miss. 33, 99 So. 434; Magnolia Petroleum Co. v. Williams, 222 Miss. 538, 76 So.2d 365; Mutual Benefit Health Accident Assn. v. Johns (Miss.), 186 So. 297; Phillips v. Dow Chemical Co., 247 Miss. 293, 151 So.2d 199; Stewart v. Kroger Grocery Co., 198 Miss. 371, 21 So.2d 912; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50, 178 So. 80.
II. The lower court erred in granting the appellees' peremptory instruction appearing at page 447 of the record. Green v. Hodges, 227 Miss. 475, 86 So.2d 335; Thomas v. Williamson, 185 Miss. 83, 187 So. 220.
III. The lower court erred in granting appellees' instructions appearing at pages 448, 453, 454 and 455 of the record. City of Jackson v. Cook, 214 Miss. 201, 58 So.2d 498; Motors Insurance Corp. v. Smith, 218 Miss. 268, 67 So.2d 294.
IV. The lower court erred in refusing this appellant's requested instructions appearing at pages 484 and 485 of the record. Bryan Bros. Packing Co. v. Grubbs, 251 Miss. 52, 168 So.2d 289; Campbell v. Willard, 205 Miss. 783, 39 So.2d 483; Winfield v. Magee, 232 Miss. 57, 98 So.2d 130; 1 Alexander, Mississippi Jury Instructions, 23.
V. The lower court erred in not granting appellant's motion for mistrial when appellees' counsel injected "insurance" into the case to the irreparable injury of this appellant. Snowden v. Skipper, 230 Miss. 684, 93 So.2d 834.
VI. The lower court erred in overruling this appellant's motion for non obstante verdicto.
Snow, Covington, Shows Watts, Meridian, for appellant, Dixie Highway Express, Inc.
I. The defendant, Dixie Highway Express, was entitled to the directed verdict. Avent v. Tucker, 188 Miss. 207, 194 So. 596; Booth v. Teche Lines, 165 Miss. 343, 143 So. 418; Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42; Bufkin v. Louisville N.R. Co., 161 Miss. 594, 137 So. 517; Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219; Campbell v. Willard, 205 Miss. 783, 39 So.2d 483; Chilcutt v. Keating, 220 Miss. 545, 71 So.2d 472; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; City of Meridian v. McCoy (Miss.), 43 So.2d 883; Cole v. Delchamps, Inc., 246 Miss. 846, 152 So.2d 911; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; E.I. DuPont De Nemours Co. v. Ladner, 221 Miss. 378, 73 So.2d 249; Flournoy v. Brown, 200 Miss. 171, 26 So.2d 351; Gray v. Turner, 245 Miss. 65, 145 So.2d 470; Hardy, Admr. v. Lambert, 252 F.2d 709; Herrin v. Daly, 80 Miss. 340, 31 So. 790, 92 Am. St. Rep. 605; Hurdle v. Edwards (Miss.), 22 So.2d 167, 27 So.2d 887; Jabron v. State, 172 Miss. 135, 159 So. 406; Jackson v. Swinney, 244 Miss. 117, 140 So.2d 555; Kramer Service v. Wilkins, 184 Miss. 483, 186 So. 625; Lagrone v. Helman, 233 Miss. 654, 103 So.2d 365; Lancaster v. Lancaster, 213 Miss. 536, 57 So.2d 302; Louisville N.R. Co. v. Daniels, 135 Miss. 33, 99 So. 434, 34 A.L.R. 516; McDonald v. Collins, 144 Miss. 820, 110 So. 663; Magers v. Okolona, H. C.C.R. Co., 174 Miss. 860, 165 So. 416; Marqueze v. Sontheimer, 59 Miss. 430; Meeks v. McBeath, 231 Miss. 504, 95 So.2d 791; Mississippi City Lines v. Bullock, 194 Miss. 630, 13 So.2d 34, 145 A.L.R. 1199; Montgomery Ward Co. v. Windham, 195 Miss. 848, 17 So.2d 208; Myrick v. Holifield, 240 Miss. 106, 126 So.2d 508; Petermann v. Gary, 210 Miss. 438, 49 So.2d 828; Pounders v. Day, 151 Miss. 436, 118 So. 298; Pullin v. Nabors, 240 Miss. 864, 128 So.2d 117; Rawlings v. Inglebritzen, 211 Miss. 760, 52 So.2d 630; Redditt v. Hughes (Miss.), 39 So.2d 861; Robertshaw Trustees v. Columbus G.R. Co., 185 Miss. 717, 188 So. 308; Rowlands v. Morphis, 158 Miss. 662, 130 So. 906; St. Paul R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256; Smith v. Federal Crop Insurance Corp., 214 Miss. 55, 58 So.2d 95; Snowden v. Skipper, 230 Miss. 684, 93 So.2d 834; Standard Oil Co. v. Henley, 199 Miss. 819, 25 So.2d 400; Standridge v. Martin, 203 Ala. 486, 84 So. 266; Stewart v. Kroger Grocery Co., 198 Miss. 371, 21 So.2d 912; Superior Oil Co. v. Richmond, 172 Miss. 407, 159 So. 850; Tabb v. Davis, 202 Miss. 538, 32 So.2d 575; Tombigbee Electric Power Assn. v. Gandy, 216 Miss. 444, 62 So.2d 567; Universal Truck Loading Co. v. Taylor, 178 Miss. 143, 172 So. 756; Wagley v. Colonial Baking Co., 208 Miss. 815, 45 So.2d 717; Walley v. Williams, 201 Miss. 84, 28 So.2d 579; White v. Weitz, 169 Miss. 102; 152 So. 484; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Winter v. Nash, 245 Miss. 246, 147 So.2d 507.
Huff, Williams, Gunn, Eppes Crenshaw, Meridian, for appellees.
I. The combined concurring acts of negligence of appellants' drivers and C.L. Brown proximately caused the accident and the death of Harmon C. Espey, and the trial court properly submitted all questions of negligence to the jury for decision. American Creosote Works of Louisiana v. Harp, 215 Miss. 5, 60 So.2d 514; Box v. Swindle, 306 F.2d 882; Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42; Byrd v. Masonite Corp., 218 Miss. 731, 67 So.2d 724; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Continental Southern Lines v. Klaas, 217 Miss. 795, 65 So.2d 575; Dixie Motor Coach Corp. v. Lane, 116 F.2d 264; Ferguson v. Denton, 239 Miss. 591, 124 So.2d 279; Graves v. Johnson, 179 Miss. 465, 176 So. 256; Gulf Refining Co. v. Brown, 196 Miss. 131, 16 So.2d 765; Hankins v. Harvey, 248 Miss. 639, 160 So.2d 63; Hattiesburg Brick Works v. Conerly, 252 Miss. 270, 172 So.2d 774; McMinn v. Lilly, 215 Miss. 193, 60 So.2d 603; Matthews v. Thompson, 231 Miss. 258, 95 So.2d 438; Meridian Hatcheries v. Troutman, 230 Miss. 493, 93 So.2d 472; Miami Transit Co. v. Karses, 146 Fla. 163, 200 So. 372; Mississippi Power Light Co. v. Walters, 248 Miss. 206, 158 So.2d 2; Missouri Pacific Transportation Co. v. Sacker, 200 Ark. 92, 138 S.W.2d 371; Mock v. Natchez Garden Club, 230 Miss. 377, 92 So.2d 562; Moore v. Taggard, 233 Miss. 389, 102 So.2d 333; Planters Wholesale Grocery v. Kincade, 210 Miss. 712, 50 So.2d 578; Savery v. Gray (Miss.), 51 So.2d 922; Sohio Petroleum Co. v. Fowler, 231 Miss. 72, 94 So.2d 350; Thompson v. Thomas, 219 Miss. 552, 69 So.2d 238; United Gas Pipe Line Co. v. Jones, 236 Miss. 471, 111 So.2d 240; Watts v. Combs, 244 Ala. 31, 12 So.2d 189; Secs. 1453, 1455, 8176, 8192, 8249, Code 1942; Annos. 145 A.L.R. 667, 29 A.L.R. 2d 5; 35 A.L.R. 2d 603; 65 C.J.S. 264; 4 Blashfield, Cyclopedia of Automobile Law and Practice, Sec. 2551 p. 38.
II. The jury was given the applicable law of the case in the instructions of the Court, and there was no reversible error in the granting and refusing of instructions. City of Jackson v. Wright, 151 Miss. 829, 119 So. 315; City of Meridian v. King, 194 Miss. 162, 11 So.2d 205; Collins Baking Co. v. Wicker, supra; Four-County Electric Power Assn. v. Clardy, 221 Miss. 403, 73 So.2d 144; Greyhound Corp. v. Kindle, 240 Miss. 702, 128 So.2d 567; Harris v. Gulf Oil Corp., 247 Miss. 623, 157 So.2d 55; Jessup v. Reynolds, 208 Miss. 50, 43 So.2d 753; Neely v. City of Charleston, 204 Miss. 360, 37 So.2d 495; Nelms Blum v. Fink, 159 Miss. 372, 131 So. 817; Sec. 1530, Code 1942.
III. The trial court properly overruled appellants' motion for mistrial and committed no reversible error in its other rulings. American Potash Chemical Corp. v. Nevins, 249 Miss. 450, 163 So.2d 224; Anderson v. Sills, 242 Miss. 238, 134 So.2d 482; Boyd v. Donald, 250 Miss. 618, 167 So.2d 661; City of Jackson v. Reed, 233 Miss. 280, 102 So.2d 342, 103 So.2d 6; Harper v. James (Ind.), 191 N.E.2d 505; Lancaster v. Lancaster, 213 Miss. 536, 57 So.2d 302; Mississippi Ice Utilities Co. v. Pearce, 161 Miss. 252, 134 So. 164; Winter v. Nash, 245 Miss. 246, 147 So.2d 507; 53 Am. Jur., Trial, Sec. 74 p. 73.
IV. A reviewing court considers all the evidence and reasonable inferences therefrom in the light most favorable to the verdict winner. Buford v. O'Neal, 240 Miss. 883, 128 So.2d 553; Forbes v. City of Durant, 209 Miss. 246, 46 So.2d 551; Johns-Manville Products Corp. v. Cather, 208 Miss. 268, 44 So.2d 405; Mississippi Winn-Dixie Supermarkets v. Hughes, 247 Miss. 575, 156 So.2d 734; Straight v. Brinson, 246 Miss. 132, 149 So.2d 515; Anno. 4 A.L.R. 2d 784.
Mrs. Madeline H. Espey and her two minor children, Timothy and Salina, who sued by their mother as next friend, being the sole heirs at law of Harmon C. Espey, deceased, filed suit in the Circuit Court of Lauderdale County, Mississippi, to recover damages for the alleged wrongful death of the said Harmon C. Espey, husband and father. The defendants were Miller Transporters, Ltd., a corporation, Dixie Highway Express, Inc., a corporation, and C.L. Brown, an individual. From a judgment in the amount of $60,000, Miller Transporters, Ltd., and Dixie Highway Express, Inc., appeal to this Court. The other defendant, Brown, paid the sum of $5,000 into the registry of the court and does not appeal, so the case is here with Miller Transporters, Ltd., and Dixie Highway Express, Inc., as appellants, and the Espeys as appellees. We are reversing the case and entering judgment here for Dixie Highway Express, Inc., and as to Miller Transporters, Ltd., we are reversing the case and remanding for a new trial.
For brevity, we shall hereinafter refer to Miller Transporters, Ltd., as Miller; Dixie Highway Express, Inc., as Dixie; and Brown as Brown.
The tragedy occurred on the morning of October 25, 1963, on U.S. Highway 11 approximately two miles north of Enterprise, Mississippi, between Enterprise and Meridian and in the area of the Chunky River.
Brown and the deceased were carpenters, both employed at the time at Stonewall, Mississippi, and were on their way to work. They were riding in Brown's pickup, Espey being his guest. As they approached what is known as the "slough" bridge just north of the Chunky River bridge, and while traveling south, it was claimed by Brown that a large truck and tank of Miller passed his (Brown's) pickup while the said truck was traveling at a high rate of speed, then cut immediately in front of Brown's pickup and stopped so suddenly and without warning that Brown was unable to prevent his pickup from running into the rear of Miller's truck. In attempting to dodge and after hitting the back of Miller's truck, the said pickup was thrown across to the east side of the said highway and in the north lane thereof. At the time, both Brown and Miller were traveling south on the west or southbound lane. Miller's truck is shown to have stopped before entering upon the "slough" bridge, which was a one-lane bridge, in order to permit the tractor and trailer of Dixie, which was approaching from the south and had already entered upon the bridge, to clear same. When Brown's pickup was, as aforesaid, thrown, knocked or swerved into the north-bound lane of traffic, the truck of Dixie smashed into the righthand side of Brown's pickup about the door thereof and knocked and dragged the said truck a distance of 72 feet, as a result of which Espey was killed.
DIXIE HIGHWAY EXPRESS
We shall first discuss the case with reference to Dixie. Dixie was traveling north at the time, its vehicles being a tractor and trailer; the trailer was loaded and the entire unit and load weighed about 40,000 pounds. Dixie's driver was familiar with the portion of the road in question; he knew there was a one-lane bridge and that the speed limit over said bridge and in that area was 25 miles per hour. The driver of Dixie's tractor testified that as he approached the Chunky River bridge, which was a short distance south of the "slough" bridge, he had to stop before entering the river bridge because of some vehicles being then on the bridge and had to wait for them to drive off the bridge; that after they had passed over the bridge, he started forward at a slow rate of speed and as he approached the "slough" bridge, saw the Miller truck and trailer; that some distance behind the Miller truck he had seen the pickup belonging to Brown. However, as they approached the "slough" bridge, Miller and Brown were on a more or less straight stretch of the road and the pickup was obscured by Miller's truck and trailer, which was between Dixie and Brown.
The driver further said that he was driving about 20 and not over 25 miles an hour as he crossed over the bridge; that when he got along where the front of his truck was about the center of Miller's tank, the pickup suddenly came from behind Miller's truck and directly across Dixie's lane of travel; that he, the driver of Dixie's truck, immediately applied the brakes of his trailer; that he could not apply the brakes of the tractor and trailer at the same time, or the brake of the tractor first, because of the danger of "jackknifing" the unit; that before he could apply the brakes on the tractor, the collision occurred and Espey was killed.
(Hn 1) The only intimation of any negligence whatsoever on the part of Dixie is by a witness, Murphy, a traveling man from Atlanta, Georgia. He testified that he was familiar with this area of road from frequently traveling same; that he was some distance behind Brown's pickup truck; that he was coming toward a curve and could look across a field probably a half mile and see the "slough" bridge; that he saw the truck of Dixie approaching from the south and crossing the "slough" bridge, and that the said Dixie truck was either upon or about the bridge when he saw it. Since the accident happened just a few feet north of the "slough" bridge, Murphy could only have seen the Dixie truck for a very few seconds before the accident.
On cross-examination, attorneys for plaintiff drew from the said witness Murphy a reluctant and hesitant estimate, which could only be a guess, that the Dixie truck was traveling at a rate of probably 35 miles per hour. This is the only evidence of any kind tending to show negligence on the part of Dixie.
This evidence was so unsatisfactory as, in our opinion, not to amount to more than a scintilla. Therefore, we hold that no negligence on the part of Dixie was shown. And, in addition, if it could be said that Dixie was actually traveling faster than 25 miles per hour, then we are met with the fact that the speed was not a proximate cause of the accident. Y. M.V.R.R. Company v. Green, 167 Miss. 137, 147 So. 333 (1933); Bufkin v. L. N. RR. Company, 161 Miss. 594, 137 So. 517 (1931).
We are reversing the case as to Dixie and entering judgment here for the said appellant. Its request for a peremptory instruction should have been granted.
MILLER TRANSPORTERS, LTD.
Both Miller's driver and Brown were likewise familar with this area; both knew that there was a speed limit of 25 miles per hour; both knew that the bridge was a one-lane bridge.
Brown testified that as he and Espey were traveling south, at about 40 miles per hour, in a curve north of the "slough" bridge, Miller's truck pulled over into the northbound lane and passed the pickup at a fast rate of speed, immediately cut back in front of the pickup, and without giving any signal seen by Brown, stopped at a distance shown later to be within 57 feet of the bridge, that is, the front of Miller's truck was within 57 feet of the "slough" bridge. Brown also testified that he had been slowing in order to gain distance between him and Miller; that he saw no stop signal given by Miller; that Miller, instead of cautiously and slowing stopping, suddenly stopped so that he, Brown, was unable to stop; that he swerved somewhat to the left to miss the Miller truck; that he hit some part of the Miller truck and remembered nothing thereafter until sometime after the accident.
Miller's driver denied that he had passed Brown in the curve; denied that he was going at a fast rate of speed and that he stopped suddenly. A picture taken after the Miller truck had stopped showed two of the rear lights thereon burning. Miller's driver claimed he had given a signal that he would stop, but Brown said he did not see it. The driver of Dixie said that Miller stopped slowly, and at the time of the accident had just stopped or was rolling very slowly.
The witness Murphy testified that Miller slowed down and made a careful stop.
(Hns. 2-4) The record in this case shows a total of 78 pages of instructions, including eight refused instructions, two of which were requests for peremptories. Of course, there were four parties to this suit; each had its own attorneys; and each party requested its own instructions. Nevertheless, it would seem that by cooperation between the defendants many of them could have been eliminated. So many instructions are bound to have confused the jury. This is particularly true in view of the following instruction given the plaintiff:
The Court instructs the jury to return a verdict for the Plaintiffs and such verdict shall be against such of the defendants as you may believe from a preponderance of the evidence were guilty of negligence proximately contributing to Harmon C. Espey's injury and death.
The giving of this instruction was reversible error. In a case of this kind, plaintiff is not entitled to a peremptory instruction unless the court can properly designate the defendant or defendants who are liable to the plaintiff. The instruction requires the jury to find for the plaintiff and then states that they shall find against such of the defendants as they believe guilty of negligence contributing to the decedent's injuries and death. The evidence was in sharp conflict as to whether Miller was liable to the plaintiffs, and it was entitled to a trial without being confronted with the peremptory instruction for the plaintiff.
If the plaintiff is entitled to a peremptory instruction, it should appear from the evidence as to which defendant or defendants is guilty of negligence proximately contributing to his injury, and such an instruction should not be given directing the jury to find somebody among the defendants who should pay. We have been unable to find any case where such an instruction has been given.
The court should not burden any one of a number of defendants whose liability or non-liability depends upon how the conflicts in evidence are resolved with an instruction telling the jury to find for the plaintiff unless the court can designate which defendant is liable. In this case, it was impossible to single out any of the three defendants as being liable because the conflicting evidence made a jury issue as to the liability of each of them, except Dixie. No case directly in point has been cited by either party, and it is doubtful if this kind of instruction has come before a court in the past. We hold that plaintiff is not entitled to a peremptory instruction unless and until the court can designate which defendant is liable as a matter of law. The instruction is calculated to confuse the jury because it tends to place all of the defendants in the same category.
(Hn 5) Appellees contend that error, if any, in this instruction was cured by one given on the form of the verdict. The first instruction given on the form of the verdict had reference to a verdict against all of the defendants, and the other instruction reads as follows:
The Court instructs the jury for the plaintiffs that if your verdict is against only one or two of the defendants, the form of your verdict may be:
"We, the jury, find for the plaintiffs against the defendant (s) ____ and ____ and assess the damages at $ ____."
You will write your verdict on a separate sheet of paper and not use this sheet for your verdict.
Reading this instruction with the peremptory instruction tends to support Miller's argument that the peremptory required finding against more than one of the defendants.
(Hn 6) In spite of the fact that the court had peremptorily instructed the jury to find for the plaintiff, there was given an "unavoidable accident" instruction, reading as follows:
The Court instructs the jury for the defendant, Miller Transporters, Ltd., that an unavoidable accident is an occurrence not contemplated by either party, and which occurs without fault or negligence of either. In the event that a party is injured and as a result of said injuries dies in an unavoidable accident, as herein defined, he or she has no right to recover damages from any other party to the accident, since the law requires that negligence of the defendant be proved in order to confer any right to recover damages from the defendant.
Of course, this instruction would conflict with the peremptory instruction and further confuse the jury.
(Hn 7) Miller complains of an instruction containing, among other things, the statement that the decedent was not guilty of negligence. We think this part of the instruction was all right, but it should have stopped at that point.
The instruction on page 453 of the record is attacked. The first sentence of this instruction reads: "The Court instructs the jury for the plaintiffs that Maurice F. Windham, in driving the Miller unit was under a duty not to pass the Brown pickup unless and until said movement could be made with reasonable safety . . ." This was an assumption that he had passed the Brown pickup, but such was a disputed issue of fact. The instruction is confusing in that the latter part thereof is not correctly connected.
(Hn 8) The instruction on page 454 criticized by Miller assumes that the driver of the Miller unit failed to keep a reasonable lookout to the rear of his tractor and trailer. This was a question for the jury.
(Hn 9) There was no error in refusing the instruction requested by Miller, shown on page 484 of the record. Substantially the same matter was submitted in another instruction on page 476, but the last sentence of the one on page 484 was confusing. (Hn 10) Defendant complains of the refusal of an instruction copied on page 485 of the record, but this instruction was properly refused because it required that before the jury could return a verdict for the plaintiff, it must believe that the driver of the Miller unit passed the pickup truck, when such passing was not essential to a recovery.
For the reasons stated, the case is reversed and remanded for another trial as to the defendant Miller.
Reversed and judgment here for Dixie Highway Express, Inc. Reversed and remanded for another trial as to the defendant Miller Transporters, Ltd.
Ethridge, P.J., and Gillespie, Brady and Smith, JJ., concur.