Opinion
No. 38149.
January 7, 1952.
1. Carriers — highest degree of care for safety of passenger.
The law requires the highest degree of care and skill by a common carrier for the safety of its passengers.
2. Trial — instructions — similar by both parties.
A party may not complain of an instruction where he has procured a similar one which used substantially the same language or theory.
3. Negligence — carriers — instructions — same theory both parties.
In action against a bus company for personal injuries alleged to have resulted from the negligence of the bus driver, plaintiff may not complain of an instruction granted at the request of the defendant that the driver was required to exercise that degree of care that an ordinarily prudent man would exercise under the same or similar conditions, but omitting any express charge that the driver was under duty of the highest care, when the instructions granted at the request of the plaintiff submitted her case to the jury on the theory of negligence in the want of reasonable care, not one of a high degree of care and skill.
4. Negligence — requisite care.
Requisite care remains always that degree of care commensurate with appreciable danger appraised in terms of ordinary prudence and interpreted in the light of attendant circumstances.
5. Negligence — instructions — proof evenly balanced.
An instruction in a negligence case which told the jury that the plaintiff must prove her charge of negligence by a preponderance of the evidence and that if from the evidence touching the charge of negligence against the defendant it is found to be evenly balanced, the verdict will be for the defendant is conceptually correct because it confined the stated criterion to "the evidence touching the charge of negligence", but as a general rule instructions of this type are not to be approved.
6. Trial — instructions — referring jury to declaration.
An instruction is erroneous which requires the jury to refer to the declaration, but where the issues are adequately outlined in other instructions, and where the factual issue is narrow and comparatively uncomplicated, such an error will not require a reversal.
7. Trial — instructions — referring jury to declaration.
When an instruction refers the jury to the declaration, the test of whether the error is reversible is whether prejudice or confusion would likely result therefrom.
8. Trial — instructions — witnesses.
An instruction that the jury in passing on the credibility of witnesses might take into consideration the demeanor and action of the witness while testifying, the general attitude of the witness as well as the interest, bias or prejudice of such witness, is not reversible error when there were several witnesses within its scope, although as a rule such an instruction may be properly refused, and must be when it can refer only to a particular witness.
Headnotes as approved by Ethridge, C.
APPEAL from the circuit court of Hinds County; M.M. McGOWAN, Judge.
Barnett, Jones Montgomery, and Francis S. Bowling, for appellant.
I. The four main instructions given appellee were erroneous.
A. Defendant's instruction No. 2. Louisville N.R. Co. v. Compiretto, 102 So. 837; Yazoo M.V.R. Co. v. Smith, 196 So. 230; Oliver Bus Lines v. Skaggs, 164 So. 9; Yazoo M.V.R. Co. v. Hawkins, 140 So. 873; Teche Lines v. Britt, 170 So. 294; 13 C.J.S., Sec. 769.
B. Defendant's instruction No. 3. Hodge v. Birmingham Electric Co., 184 So. 40; Durrett v. Mississippian Ry. Co., 158 So. 776; Stevenson v. Yazoo M.V.R. Co., 74 So. 132; Gentry v. Gulf S.I.R. Co., 67 So. 849; Mardis v. Yazoo M.V.R. Co., 76 So. 640; Southern Ry. Co. v. Weatherlow, 51 So. 381; Blalock v. Magee, 38 So.2d 708; Wilburn v. Gordon, 45 So.2d 844.
C. Defendant's instruction No. 7. Lanham v. Wright, 142 So. 5; Teche Lines v. Keller, 165 So. 303; Wilburn v. Gordon, 45 So.2d 844.
D. Defendant's instruction No. 8. Yazoo M.V.R. Co. v. Alexander, 179 So. 266; Hartley v. State, 137 So. 518; Hoxie v. Hadad, 11 So.2d 693; G.M. N.R. Co. v. Weldy, 8 So.2d 249; Sec. 1530 Code 1942; Allen v. Lyles, 35 Miss. 513; D'Antoni v. Teche Lines, 143 So. 415; Buckley v. State, 62 Miss. 706; M. A. Motor Freight Lines v. Villere, 1 So.2d 788; Mississippi Law Journal, Vol. 12, No. 3, p. 12.
II. Conclusion.
We anticipate that counsel for appellee will advance the argument that the errors are cured and harmless. This possibly might be so if there was present only one error in one instruction. Here we have serious errors in all main instructions. Certainly an erroneous instruction cannot be cured by another erroneous instruction.
This Court, through Justice Smith, in the case of Forbes v. City of Durant, 46 So.2d 551, said: "The case was a close one on the facts, and the jury, as triers of the facts, found thereon for the defendant. In such a situation the matter of instructions becomes of increased importance."
We therefore respectfully submit that the errors in the within discussed instructions given for the appellee require a reversal of this case. We will not attempt to discuss the facts here, but submit that a reading of the record clearly shows a case of ample proof to warrant a judgment for the appellant. Such might have been the case had the jury not been confused and misled by erroneous instructions. Certainly the appellant should have an opportunity for a trial free of the errors shown herein.
Forrest B. Jackson, for appellee.
A. Instruction No. 2. Counsel says that a common carrier is under the duty and is required to exercise the highest degree of care to transport passengers safely to destination. With this broad statement there is no dissent, but that care is not mentioned in any instruction requested for the plaintiff.
There was no instruction requested on behalf of the plaintiff which referred to the high degree of care or the highest degree of care required of a common carrier of passengers, and certainly, then, plaintiff cannot put the trial court in error by failing to request instructions upon any such theory of the case. Robinson v. Colotta, 199 Miss. 800, 26 So.2d 66; Davidian v. Wendell, (Miss.), 37 So.2d 771.
B. Defendant's instruction No. 3. The same response to the argument as to error in instruction No. 2 is equally applicable to this particular instruction.
Counsel insists that our instruction No. 3 is condemned by the case of Durrett v. Mississippian Ry. Co., 171 Miss. 899, 158 So. 776.
A perfunctory comparison of the language there condemned with the entire instruction No. 3 here, demonstrates immediately, the glaring differences and, of course, the distinction.
That charge is in the disjunctive and told the jury not only that if the evidence for plaintiff and defendant is evenly balanced but that if, in the disjunctive, the jury was uncertain or had any doubt as to how or who set out the fire, then in either event it was the duty of the jury to return a verdict for the defendant. No such charge is contained in our instruction No. 3.
The type of instruction which counsel for appellant urges here to be erroneous is specifically approved by the Missouri Court in the case of Jones v. Missouri Freight Transit Corp., 225 Mo. App. 1076, 40 S.W.2d 465. Compare Gregory v. Williams, 203 Miss. 455, 35 So.2d 451, 453.
C. Defendant's instruction No. 7. Let us admit that in referring the jury to the allegations of the pleadings, this instruction is in bad form. Yet, this does not mean that such an instruction in the light of the issues, the evidence and the other given instructions, will justify a reversal of this case for a new trial. See Lanham v. Wright, 164 Miss. 1, 142 So. 5, at page 8, Headnotes 9, 10; Teche Lines, Inc. v. Kellar, 174 Miss. 527, 165 So. 303, Headnotes 2 and 3; Wilburn v. Gordon, 209 Miss. 27, 45 So.2d 844, 846, Headnote 3.
D. Defendant's instruction No. 8. The apt language used by this Court in the case of Sikes v. Thomas, 192 Miss. 647, 7 So.2d 527, is quite applicable here by way of response to argument by learned counsel for appellant. Compare Gregory v. Williams, 203 Miss. 455, 35 So.2d 451, 453.
This appeal questions the validity of four instructions granted appellee, Jackson City Lines, Inc., defendant in the court below. Appellant, Mrs. Mattie Lou Evans, brought suit in the Circuit Court of the First Judicial District of Hinds County seeking damages from appellee for the alleged negligence of its bus driver in closing a bus door on her while she was entering the bus. Appellant and another witness testified that the bus driver negligently slammed the door on appellant while she was on the bottom step of the bus in the process of boarding it, that the door struck her on her arms and shoulders, that there was nothing in the way to prevent the driver from seeing her before and while she was boarding the bus, and that as a result of such negligence appellant fell on the curb of the street and was injured. For the appellee, the bus driver testified that as soon as he saw appellant's foot come up in the door of the bus, he stopped the door in the process of closing and threw it back open, that the door did not knock appellant down, that she fell because she lost her balance in stepping on the bus step and sat down on the ground. The jury returned a verdict for appellee with conflicting evidence on the issue of negligence. This was a jury question, and the verdict is not contrary to the overwhelming weight of the evidence.
Appellant says that the trial court erred in granting defendant's instruction Number 2: "The Court instructs the jury that the fact that an accident occurred is not of itself any proof of negligence, and in the case under consideration, to warrant a recovery by the plaintiff, it is not enough for her to show that she fell, or that she fell and sustained certain injuries therefrom; nor is the negligence of Jackson City Lines, Inc., to be presumed or inferred by you from the mere fact that the plaintiff fell, but before the plaintiff can recover, she must prove by a preponderance of the credible evidence that the defendant, acting by and through its duly authorized agents and servants, failed to exercise that degree of care that an ordinarily prudent man would exercise under the same or similar conditions, and that such negligence, if any you find, was the proximate cause of the injuries, if any, sustained by Mrs. Mattie Lou Evans, the plaintiff."
Appellant argues that this instruction placed upon her too high a degree of proof; that a common carrier must exercise the highest degree of care and diligence for the safety of its passengers, and that the instruction is based upon ordinary care alone. It is true that (Hn 1) the law requires the highest degree of care and skill by common carriers. Teche Lines, Inc. v. Britt, 1936, 176 Miss. 681, 693, 170 So. 294. But appellant did not submit that theory to the jury. The only instruction obtained by appellant on the issue of liability was based upon a theory of "reasonable care" and "negligence". Plaintiff's instruction Number 4 stated: "The Court instructs the jury that if you believe from a preponderance of the evidence in this case that on the day in question the plaintiff was attempting to board the defendant's bus, and you further believe that the driver of the bus closed the door on the plaintiff, at a time when the driver knew, or by the exercise of reasonable care should have known, that plaintiff was getting into the bus, and you further believe from a preponderance of the evidence that such action on the part of the driver was negligence, and that such negligence, if any, if shown by a preponderance of the evidence, proximately caused or proximately contributed to plaintiff's injuries, then it is your sworn duty to return a verdict for the plaintiff."
By this instruction appellant submitted to the jury her theory of "reasonable care", and "negligence", and not one of a high degree of care and skill. The instruction complained of, and quoted above, defendant's instruction Number 2, submits this same theory. (Hn 2) A party may not complain of an instruction where he has procured a similar one which used substantially the same language or theory. Liverpool and London and Globe Insurance Co. v. Van Os and Schuster, 1886, 63 Miss. 431; Ross v. Louisville N.R. Company, 1938, 181 Miss. 795, 181 So. 133; Gulf and Ship Island R.R. Co. v. Boswell, 1904, 85 Miss. 313, 38 So. 43. (Hn 3) Moreover, the instruction complained of required defendant "to exercise that degree of care that an ordinarily prudent man would exercise under the same or similar conditions * * *." And as was said in Supreme Instruments Corp. v. Lehr, 1941, 190 Miss. 600, 199 So. 294, suggestion of error sustained, 190 Miss. 623, 627, 1 So.2d 242, 245, (Hn 4) "requisite care remains always that degree of care commensurate with appreciable danger appraised in terms of ordinary prudence and interpreted in the light of the attendant circumstances."
Appellant also complains of defendant's instruction Number 3. (Hn 5) The court there told the jury that plaintiff must prove her charge of negligence by a preponderance of the credible evidence. That instruction then stated: "If, therefore, you find the evidence touching the charge of negligence against the defendant to be evenly balanced, after fairly considering it, it is your sworn duty to return a verdict for the defendant."
We do not approve this type of instruction, because of the risk of error to be incurred in trying to properly phrase and further define the requirement that a plaintiff must prove her case by a preponderance of the evidence. See Blalock v. Magee, 1949, 205 Miss. 209, 38 So.2d 708, 714. The instructions condemned in such cases as Gentry v. Gulf S.I.R. Co., 1915, 109 Miss. 16, 67 So. 849, through Durrett v. Mississippian R. Co., 1934, 171 Miss. 899, 158 So. 776, involved entirely different types of condemned instructions, in which usually the plaintiff was required to prove all of the elements of his action beyond doubt. The defendant's instruction Number 3 confined the stated criterion to "the evidence touching the charge of negligence". As so limited, the instruction is conceptually correct. Contributory negligence of the plaintiff was not pleaded by the defendant or submitted to the jury in the instructions, so this instruction presents no conflict with Code Section 1454, the comparative negligence statute. Compare Wilburn v. Gordon, 1950, 209 Miss. 27, 45 So.2d 844. A somewhat similar instruction to that quoted above was upheld in Jones v. Missouri Freight Transit Company, 1931, 225 Mo. App. 1076, 40 S.W.2d 465.
Defendant's instruction Number 7 stated: "The Court instructs the jury that you may not, under the law, decide this case upon a mere guess, suspicion or surmise that Mrs. Mattie Lou Evans may have been injured as the result of some negligence of the defendant, but the law requires the plaintiff to prove her case and every material allegation of her declaration by a preponderance of the credible evidence in this case and, unless she has done so, it is your sworn duty to return a verdict for the defendant."
(Hn 6) Appellant says that this instruction is reversible error because it requires the jury to refer to the declaration, and that this practice has been condemned in numerous cases. The instruction is erroneous in this respect, but we do not think that it is reversible error. Rule 11 of this Court. The issues were adequately outlined in plaintiff's instruction Number 4, which is quoted above. All of the instructions must be considered together. That instruction set out plaintiff's theory of her case and what plaintiff must prove by a preponderance. It has also been held that an instruction referring to the declaration is not reversible error where the factual issue is narrow and comparatively uncomplicated, which was the situation here. For example, in Lanham v. Wright, 1932, 164 Miss. 1, 142 So. 5, the court condemned an instruction referring the jury to the declaration, because a declaration "is usually couched in technical and complicated language". (Hn 7) The test is whether prejudice or confusion would likely result from such instruction. We do not think that it would have in this case and under these circumstances. J.J. Newman Lbr. Co. v. Dantzler, 1914, 107 Miss. 31, 64 So. 931. In Teche Lines, Inc. v. Kellar, 1936, 174 Miss. 527, 165 So. 303, an instruction referring the jury to the declaration was cured by other instructions granted the appellant. See also Wilburn v. Gordon, supra.
Appellant also argues that defendant's instruction Number 8 was error. It stated: "The Court instructs the jury that you are the sole judges of the weight of the evidence and the credibility of the witnesses in this case; that by a preponderance of the evidence is meant the greater weight of the credible evidence; (Hn 8) that in passing on the credibility of witnesses, you may take into consideration the demeanor and action of the witness while testifying, that is to say, the general attitude of the witness, as well as the interest, bias or prejudice of such witness in the case; and unless the plaintiff has proven her case by a preponderance of the credible evidence, that is, the greater weight of the credible evidence under all the instructions given you in this case, then it is your sworn duty to return a verdict for the defendant."
In Sanders v. State, Miss., 1939, 192 So. 344, it was said that the giving of such an instruction rests in the sound discretion of the trial judge. It is in general terms and expresses a mere truism. Alexander, The State Also is Entitled to a Fair Trial, 12 Miss. L.J. 265, 286-294 (1940). In Hoxie v. Hadad, 1943, 193 Miss. 896, 11 So.2d 693, the court disparaged the use of such an instruction, but said that when it is in general terms it is harmless and not reversible error. Appellant says that the instruction can be interpreted to refer only to the interest of the plaintiff, and that it is error to single out a particular witness. However, in addition to the plaintiff as a possible interested witness, there was also Morgan, the bus driver, X-ray technicians, and several doctors. Some of them testified for plaintiff and some for defendant. The instruction was two-edged, because the jury could have found that any or all of these parties were interested. The instruction should have been refused, but under these circumstances is harmless.
Affirmed.
The above opinion is adopted as the opinion of the Court and for the reasons therein indicated, the judgment of the court below is affirmed.