Opinion
No. 27443.
November 19, 1928.
1. AUTOMOBILES. Liability for damage in automobile collision is for jury under conflicting evidence as to whether negligence or contributory negligence constituted proximate cause.
Question of liability for damage in collision between automobiles is for jury under conflicting evidence relative to whether negligence of plaintiff or defendant constituted proximate cause of collision.
2. NEGLIGENCE. Only contributory negligence can be considered for purpose of reducing damages.
Only contributory negligence on part of plaintiff can be considered for purpose of diminishing damages in proportion thereto.
3. TRIAL. All instructions are to be taken together and considered as one instruction.
All the instructions given in a case are to be taken together and considered by the jury as one instruction.
4. APPEAL AND ERROR. Erroneous instruction will not constitute reversible error, unless so squarely in conflict with other instructions as to be misleading.
An erroneous instruction given will not constitute reversible error, unless it is so squarely in conflict with the other instructions putting the governing principles of law to the jury that it is calculated to be misleading.
5. TRIAL. Instruction authorizing reduction of damages in proportion to negligence held not erroneous, in view of other instructions providing for reduction in proportion to contributory negligence.
Instruction, in action for damages in automobile collision, authorizing jury to diminish plaintiff's damages in proportion to his negligence without regard to whether negligence contributed to injury, held not to constitute reversible error, in view of other instructions plainly authorizing jury to reduce damages only in proportion to contributory negligence.
APPEAL from circuit court of Coahoma county, Second district, HON. W.A. ALCORN, JR., Judge.
John W. Crisler, for appellant.
Contributory negligence is not a complete defense, and where both parties are negligent the plaintiff is entitled to recover even though the plaintiff was guilty of gross negligence. Y. M.V.R.R. v. Williams, 114 Miss. 236, 74 So. 835; Miss. Cent. R.R. Co. v. Lott, 118 Miss. 816, 80 So. 277; G. S.I.R.R. Co. v. Boone, 82 So. 335; Hardy v. Turner-Farber-Love Co., 136 Miss. 355, 101 So. 489; Byrnes v. City of Jackson, 140 Miss. 656, 105 So. 861; G.M. N.R.R. Co. v. Arrington (Miss., not officially reported), 107 So. 378.
The two instructions granted the appellee and complained of both ignore the fact that the negligence of the plaintiff and the excessive speed of the plaintiff must have proximately contributed to the injury. The first instruction complained of says that the verdict must be reduced if the plaintiff was himself negligent, but fails to say that such negligence must have proximately caused the collision. The second instruction complained of says that the verdict must be reduced if the plaintiff was driving his car at an excessive rate of speed, but fails utterly to say that such excessive speed must have proximately contributed to the accident.
The universal rule on this question is laid down in 29 Cyc. 651, par. C. See 45 C.J., 1345, par. 920.
Brewer Brewer, for appellee.
The statement is made in appellant's brief that "contributory negligence is not a complete defense, and where both parties are negligent the plaintiff is entitled to recover even though plaintiff was guilty of gross negligence."
This statement of the law might be correct if counsel would add thereto the further statement, "provided the jury, after hearing all the evidence and receiving proper instructions from the court, thinks the plaintiff entitled to a recovery."
If contributory negligence were a complete defense we would have asked for an instruction to the effect that if the jury believed from the evidence in the case that the appellant was guilty of contributory negligence, that the verdict would be for the appellee, defendant in the court below. We did not ask for any such instruction but did ask for one on the comparative negligence statute.
Counsel cites the case of the Y. M.V.R.R. Co. v. Williams, 114 Miss. 236, 74 So. 835. The principle of law announced therein supports the ruling of the lower court.
The case of Mississippi Central R.R. Co. v. Lott, 118 Miss. 816, 80 So. 277, is not in point. We do not make the contention that contributory negligence can be pleaded as an absolute defense.
The question of contributory negligence is also discussed in the case of G. S.I.R.R. Co. v. Boone, 82 So. 335, and likewise has no application to the case at bar.
The case of Hardy v. Turner-Farber-Love Company, 136 Miss. 355, 101 So. 489, is one where a peremptory instruction was granted and the court in reversing the case held that the questions presented should have been submitted to the jury under proper instructions.
It will be clearly seen that none of the authorities cited by counsel on this question are in point.
The lower court was correct in not granting the plaintiff a peremptory instruction. See Bates v. Strickland, 139 Miss. 636, 103 So. 432.
On refusal to direct verdict every fact favorable to appellee considered proved, if established directly or by reasonable inference. Dean v. Brannon, 139 Miss. 312, 104 So. 173; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Reed Bros. v. Bluff City Motor Co., 139 Miss. 441, 104 So. 161; G. S.I.R.R. Co. v. Hales, 140 Miss. 829, 105 So. 458; St. L. S.F. Ry. Co. v. Nixon Phillips, 141 Miss. 677, 105 So. 478; Wise v. Peugh, 140 Miss. 479, 106 So. 81; Ross v. Fair, 145 Miss. 18, 110 So. 841; Harris v. Stuart Lbr. Co., 110 So. 636; Hines v. Moore, 124 Miss. 500, 87 So. 1; City of Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590; L. N.R.R. Co. v. Jones, 99 So. 230; Fraternal Aid Union v. Whitehead, 125 Miss. 153, 87 So. 453; Woolworth Co. v. Volking, 135 Miss. 410, 100 So. 3; N.O. N.E.R.R. Co. v. Ward, 132 Miss. 462, 96 So. 401; Powell v. Tomlinson, 129 Miss. 658, 92 So. 583.
All instructions given in a case should be construed together, and if they fairly present the law, even though there may be defects in some one instruction, this is not cause for reversal. A. V.R.R. Co. v. Fountain, 111 So. 153, 145 Miss. 515.
Appellant brought this action in the circuit court of Coahoma county against appellee for damages done appellant's automobile, as the result of a collision between appellant's automobile and that of appellee, through the alleged negligence of the latter. There was a trial, resulting in a verdict and judgment for appellee, from which judgment appellant prosecutes this appeal.
The refusal of the court to direct a verdict in appellant's favor, and the giving of two instructions for appellee, are assigned and argued as reversible errors.
About midnight on April 29, 1927, at the intersection of Fourth and Mississippi streets, in the city of Clarksdale, there took place a collision between appellant's and appellee's automobiles. Each car was being driven by its owner. Both appellant and appellee, at the time of the collision, were violating the speed ordinance of the city. The evidence on behalf of appellant tended to show that the proximate cause of the collision between his car and that of appellee, and the injury to appellant's car resulting therefrom, was the negligence of the latter, while the evidence on behalf of appellee tended to show that the proximate cause of the collision was the negligence of appellant. The question of liability therefore was clearly one for the jury, and it was not error for the court to refuse to direct a verdict for appellant.
One of the instructions given appellee, of which appellant complains, authorized the jury to diminish appellant's damages in proportion to his negligence, without regard to whether such negligence contributed to the injury, or not. This was erroneous. Under the law it is only contributory negligence on the part of the plaintiff that should reduce his damages. The other instruction given appellee, of which appellant complains, was not erroneous, because, as claimed by appellant, it ignored the question, whether or not appellant's negligence contributed to the injury. That instruction concludes in this language:
"The amount of damages, if any, awarded to plaintiff must be diminished in proportion to his own negligence which contributed to the accident."
In the first instruction given for appellant, the jury were told that, if the damage to appellant's car was caused by the negligence of appellee, they should award appellant damages to the amount of the injury done his car. All the instructions given in a case are to be taken together and considered by the jury as one instruction. An erroneous instruction given will not constitute reversible error, unless it is so squarely in conflict with the other instructions in the case, putting the governing principles of law to the jury, that it is calculated to be misleading to the jury. We do not think that can be said of the erroneous instruction here complained of. Construing all the instructions together, the jury were plainly told that, if the proximate cause of the injury was the negligence of appellee, they should return a verdict for appellant; and, on the other hand, if both appellee and appellant proximately contributed to the injury by their negligence, then the jury should reduce appellant's damages in proportion to his contributing negligence.
Affirmed.