Summary
In Crump v. Brown, 246 Miss. 631, 151 So.2d 822 (1963), substantially the same instruction with the same defects we held to be reversible error, and in this case it was further held that the giving of the general instructions on negligence did not cure the defect in the sudden emergency instruction.
Summary of this case from Kettle v. Musser's Potato Chips, Inc.Opinion
No. 42639.
April 15, 1963.
1. Motor vehicles — negligence — injury to pedestrian on highway — peremptory instruction on liability, properly refused.
Where plaintiff, an adult pedestrian, had moved quickly into highway, and defendant automobile operator had time to avoid pedestrian but pedestrian turned back and was struck, trial court did not err in refusing peremptory instruction to pedestrian upon issue of liability.
2. Motor vehicles — negligence — injury to pedestrian on highway — proper case for instruction on sudden emergency.
Where plaintiff, an adult pedestrian, had moved quickly into highway and defendant automobile operator had turned to avoid plaintiff but plaintiff turned back and was struck, it was not error to give, on request, instruction on sudden emergency rule.
3. Negligence — sudden emergency — essential requirement in a sudden emergency instruction.
Requirement that driver exercise such care as reasonably prudent and capable driver would use under the unusual circumstances is essential requirement in an instruction submitting sudden emergency rule.
4. Motor vehicles — negligence — injury to pedestrian on highway — sudden emergency instruction reversibly erroneous.
Where plaintiff, an adult pedestrian, had moved quickly into highway and defendant automobile operator had turned to avoid pedestrian but pedestrian turned back and was struck, trial court's grant of sudden emergency instruction without requiring operator to exercise such care as reasonably prudent and capable driver would use under the unusual circumstances was reversible error.
5. Instructions — abstract definition of negligence in a granted instruction as not curing defect in sudden emergency instruction.
Abstract definition of negligence is not adequate substitute for telling jury that after sudden emergency has arisen, the driver of a vehicle must exercise such care as reasonably prudent and capable driver would use under the unusual circumstances.
6. Appeal — Rule 11, Supreme Court Rules not applicable in view of closeness of case on facts.
In view of closeness of case on facts, rule precluding reversal on ground of misdirection to jury unless it affirmatively appears from whole record that judgment resulted in miscarriage of justice was not applicable. Rule 11, Supreme Court Rules.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Simpson County; HOMER CURRIE, Judge.
Walker Sullivan, Mendenhall; Satterfield, Shell, Williams Buford, Jerome B. Steen, Jackson, for appellant.
I. The lower court erred in denying to the appellant a peremptory instruction on the issue of liability. Avery v. Collins, 171 Miss. 636, 157 So. 695, 158 So. 552; Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 141 So.2d 226; Moak v. Black, 230 Miss. 337, 92 So.2d 845; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Secs. 8176, 8202, Code 1942.
II. The verdict of the jury was manifestly against all reasonable probability and was contrary to the overwhelming weight of the evidence. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; Gray v. Felts, 241 Miss. 599, 131 So.2d 454; Moak v. Black, supra; Murphy v. Latham, 210 Miss. 434, 49 So.2d 807; Pullin v. Nabors, 240 Miss. 864, 128 So.2d 117.
III. The Court erred in granting the following instruction for the appellee: "The Court instructs the jury for the defendant, Mrs. Lewis K. Brown, that under the law when a person is suddenly confronted with a sudden emergency not of her own making and is by reason thereof placed in a position of peril without sufficient time in which to determine with certainty the best thing to do, she is not held to the same accuracy of judgment as is required of her under ordinary circumstances, and in this case if you believe from the evidence that the defendant was immediately prior to the collision with the plaintiff confronted with a sudden emergency which she did not create and was by reason thereof placed in a position of peril, then in weighing the evidence and in determining whether or not the defendant was guilty of negligence at the time of the collision with the plaintiff, you may take into consideration all the facts and circumstances as shown by the evidence and the situation with which the defendant was confronted, you must believe from a preponderance of all the evidence in this case that the defendant was guilty of negligence which contributed to the collision with the plaintiff before the plaintiff is entitled to a verdict at your hands; and if the plaintiff has failed to prove to you by a preponderance of the evidence that the defendant was guilty of negligence which contributed to the collision, then your verdict must be for the defendant." Avery v. Collins, supra; Callaway v. Haddad, 226 Miss. 177, 83 So.2d 825; Jones v. Dixie Greyhound Lines, 211 Miss. 34, 50 So.2d 902; Moak v. Black, supra; Moore v. Taggart, 233 Miss. 389, 102 So.2d 333; Pullin v. Nabors, supra.
George B. Grubbs, Mendenhall; Heidelberg, Woodliff Franks, Jackson, for appellee.
I. The lower court did not err in denying to the appellant a peremptory instruction on the issue of liability. Avery v. Collins, 171 Miss. 636, 157 So. 695, 158 So. 552; Coker v. Five-Two Taxi Service, Inc., 211 Miss. 820, 52 So.2d 356, 835; Ginnings v. Meridian Water Works, 100 Miss. 507, 56 So. 450; Pullin v. Nabors, 240 Miss. 864, 128 So.2d 117; Triangle Amusement Co. v. Benigno (Miss.), 35 So.2d 454; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Secs. 8176, 8202, Code 1942.
II. The verdict of the jury and the judgment thereon was entirely consonant with the overwhelming weight of the evidence and the Court did not err in overruling plaintiff's motion for a new trial. Bowling v. Harrison, 47 U.S. (6 How. 248) 248, 12 L.Ed. 425; Cazeneuve v. Martinez, 78 Miss. 74, 28 So. 788; Davis v. Temple, 129 Miss. 6, 91 So. 689; Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; Flowers v. Morris (La.), 43 So.2d 917; Gray v. Felts, 241 Miss. 599, 131 So.2d 454; Green v. Everson, 141 Miss. 129, 106 So. 265; Hemming v. Rawlings, 144 Miss. 643, 110 So. 118; Kelly v. State, 239 Miss. 705, 124 So.2d 844; Moak v. Black, 230 Miss. 337, 92 So.2d 845; Mobile O.R. Co. v. Campbell, 114 Miss. 803, 75 So. 554; Mobile O.R. Co. v. Cox, 153 Miss. 597, 121 So. 292; Murphy v. Latham, 210 Miss. 434, 49 So.2d 807; Pullin v. Nabors, supra; Shelton v. Underwood, 174 Miss. 169, 163 So. 828; Triangle Amusement Co. v. Benigno, supra; Trotter v. Staggers, 201 Miss. 9, 28 So.2d 237; Watson v. Dickens, 12 Sm. M. (20 Miss.) 608; Yazoo M.V.R. Co. v. Smith, 188 Miss. 856, 196 So. 230.
III. The Court did not err in granting Instruction No. 5 for the appellee on the doctrine of sudden emergency. Anderson v. Sills, 242 Miss. 238, 134 So.2d 482; Avery v. Collins, supra; Ball v. Witten, 155 Va. 40, 154 S.E. 547; Callaway v. Haddad, 226 Miss. 177, 83 So.2d 825; C.J. Peck Oil Co. v. Diamond, 204 F.2d 179; Jones v. Dixie Greyhound Lines, 211 Miss. 34, 50 So.2d 902; Kirkland v. Harrison, 221 Miss. 714, 74 So.2d 820; Metropolitan Life Ins. Co. v. Moss (Miss.), 192 So. 343; Moak v. Black, supra; Moore v. Taggart, 233 Miss. 389, 102 So.2d 333; Pullin v. Nabors, supra; Rawlings v. Royals, 214 Miss. 335, 58 So.2d 820; Stoner v. Calvin, 236 Miss. 736, 110 So.2d 920.
Appellant-plaintiff sued appellee-defendant for personal injuries sustained when appellant was struck by an automobile driven by appellee. The jury returned a verdict for defendant and judgment was entered accordingly. Plaintiff appealed to this Court.
Appellee was driving east along Highway 28. When she was about 100 yards west of a country store, and while traveling at 30 to 35 miles per hour, appellee saw a group of people standing about six feet south of the highway between the highway and the store. When she saw these people, she lifted her foot from the accelerator and the automobile began to slow down, but she did not then apply her brakes or blow her horn. When her automobile was about 30 or 40 feet from where the people were standing, appellant ran or quickly moved into the highway. Appellee applied her brakes and turned right to miss appellant, but appellant turned back south and when appellee tried to turn left the vehicle struck and injured appellant. The accident occurred in the early evening; appellant is an adult.
(Hn 1) Appellant contends that the lower court erred in refusing to grant her a peremptory instruction on the issue of liability, but we are of the opinion that this was not error.
Appellant contends that the verdict was manifestly against all reasonable probability and was contrary to the overwhelming weight of the evidence. This presents a close question but we find it unnecessary to pass upon it for the reason that the case must be reversed and remanded for a new trial for other reasons and a decision on whether the verdict was against the overwhelming weight of the evidence would not change the result.
(Hn 2) Appellant assigns as error the giving, at appellee's request, of an instruction on the sudden emergency rule. It is first contended by appellant that under the facts there was no justification for the submission to the jury of an instruction on the sudden emergency rule. She relies principally upon the cases of Avery v. Collins, 171 Miss. 636, 157 So. 695; Jones v. Dixie Greyhound Lines, 211 Miss. 34, 50 So.2d 902, and Moak v. Black, 230 Miss. 337, 92 So.2d 845. All the cited cases involve injuries to children who were seen in the place of apparent danger in ample time to give the driver an opportunity to have avoided the injuries. These cases do not apply here. Neither is Pullin v. Nabors, 240 Miss. 864, 128 So.2d 117 in point on the facts.
(Hn 3) Appellant next contends that it was error to grant the sudden emergency instruction because it did not define "sudden emergency" and cites Moore v. Taggart, 233 Miss. 389, 102 So.2d 333, and Pullin v. Nabors, supra. These cases hold that the instruction should define "sudden emergency" and it was error for the instruction to be given without such definition, however, this Court does not say that this error alone would justify reversal.
(Hn 4) Appellant also contends that it was error to grant the sudden emergency instruction because it failed to require appellee, in order to have the benefit of the sudden emergency rule, to exercise such care as a reasonably prudent and capable driver would use under the unusual circumstances. This is an essential requirement in an instruction submitting the sudden emergency rule, and its omission in this case was reversible error. Callaway v. Haddad, 226 Miss. 177, 83 So.2d 825; Moore v. Taggart, 233 Miss. 389, 102 So.2d 333.
(Hn 5) Appellee contends that the exact instruction was granted in the case of Cinderella Foods v. Miller (Miss.), 52 So.2d 641, but an examination of that case reveals that the specific issue here involved was not there raised. Appellee also says that the deficiency in this instruction was cured because an instruction defining negligence was granted appellee and the Court should hold that when the instructions are read together the omission was supplied. We are of the opinion that the general abstract instruction attempting a definition of the word "negligence", wherein the jury was told that the word "negligence" as used in the instructions means the doing of something which a reasonably prudent person would not have done under like circumstances, or the failure to do something which a reasonably prudent person would have done under like or similar circumstances, does not cure the defect in the sudden emergency instruction. The abstract definition of "negligence" is not an adequate substitute for telling a jury that after a sudden emergency has arisen the driver of a vehicle must exercise such care as a reasonably prudent and capable driver would use under the unusual circumstances.
(Hn 6) Finally, appellee cites Rule 11 of the Revised Rules of the Supreme Court of Mississippi, which states that no judgment shall be reversed on the ground of misdirection to the jury unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice. But we do not think this is a case for the application of Rule 11. It is a very close case on the facts. Under the circumstances, the jury should have been properly instructed. The crucial question was involved in the sudden emergency instruction, which was not qualified as required by law.
Reversed and remanded.
Lee, P.J., and McElroy, Rodgers and Jones, JJ., concur.