Opinion
No. 33309.
October 31, 1938.
1. HIGHWAYS.
A road contractor engaged in constructing a road had right to place an effective barricade at the point where the usable portion of the road ended and the unusable portion began.
2. HIGHWAYS.
The right of a road contractor to place a barricade at the point where the usable portion of a road ends and the unusable portion begins is subject to the qualification that the barricade shall be such that it can be readily or easily seen by those approaching it on the usable portion of the road and for a sufficient distance to safely allow the traveler to stop before arriving at the barricade.
3. AUTOMOBILES.
In action against highway contractor for death of motorist who in clear daylight crashed into steel trailer barricade across highway under construction, where evidence conclusively showed that trailer barricade could be readily or easily seen by an approaching traveler who was in the exercise of vigilant caution and keeping a constant lookout on road under construction and circumstances were such that a traveler should have known that road was under construction, finding that circumstances were not sufficient to charge motorist with knowledge that road was under construction was not warranted.
4. TRIAL.
Excerpts from opinions should not be used in the drawing of instructions, since language which is understood by members of the legal profession in the connection with which it is used may not be understood by the laymen on the jury.
APPEAL from the circuit court of Humphreys county; HON. S.F. DAVIS, Judge.
Watkins Eager, of Jackson, and W.D. Womack, of Belzoni, for appellant.
The lower court should have directed verdicts for the appellants in accordance with appellants' separate requests.
Graves v. Johnson, 179 Miss. 465, 176 So. 256; American Car Foundry Co. v. Kindermann, 216 Fed. 499; Brewer v. Browning, 115 Miss. 358, 76 So. 267; Elrich v. Schwaverer, 230 N.W. 902; Hickey v. Missouri Pacific R.R. Corp., 8 F.2d 128; Masonite Corp. v. Dennis, 175 Miss. 855, 168 So. 613; Missouri, K. T. Ry. Co. v. Collier, 157 Fed. 347, 209 U.S. 545, 28 S.Ct. 571, 52 L.Ed. 920; Newton v. Homochitto Lbr. Co., 165 Miss. 20, 138 So. 564; Pennsylvania R.R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Teche Lines, Inc. v. Bounds, 179 So. 747; U.S. v. Kerr, 61 F.2d 800; Y. M.V.R.R. Co. v. Lamensdorf, 178 So. 80.
The undisputed fact that hundreds of automobiles had constantly used the road without accident conclusively demonstrates the easy visibility of the trailer-barricade.
Millstead v. City of New Orleans, 146 So. 493.
Section 5579 of the Mississippi 1930 Code prohibits the operation of a motor vehicle by any person in a state of intoxication, or "in other respects incapable of properly and safely operating said motor vehicle."
Terry v. State, 160 So. 574.
The lower court erred in refusing appellants' separate requested instructions that J.B. Hamilton and Pete Johnson were each guilty of negligence proximately contributing to the fatal accident.
Graves v. Johnson, 179 Miss. 465, 176 So. 256.
The learned trial court erred in giving the instruction requested by appellees shown at page 488 of the record. In drawing this instruction appellees' counsel have adopted the legal phraseology of Your Honors' opinion and overlooked the fact that the instruction itself to the jury must be based on a finding of facts.
The learned trial court erred in overruling appellants' objections to the testimony of certain of appellees' witnesses who were permitted to testify that the I beams of the trailer blended with the concrete, or that the color of the concrete and the color of the I beams were similar, such evidence being incompetent and prejudicial as constituting the opinions of the witnesses and matters solely within the province of the jury.
F.W. Woolworth Co. v. Haynie, 176 Miss. 703, 170 So. 150.
The verdict of the jury and the judgment rendered thereon is contrary to the great overwhelming weight of the evidence.
Columbus Greenville Ry. Co. v. Buford, 150 Miss. 832, 116 So. 817; M. O.R.R. Co. v. Bennett, 127 Miss. 413, 90 So. 113.
The amount of the verdict and judgment rendered thereon is so grossly excessive as to evince passion and prejudice on the part of the jury.
Murphy Wadlington and V.B. Montgomery, all of Belzoni, for appellees.
The evidence of appellees' witnesses is consistent with and corroborated by and not contrary to admitted physical facts, natural laws or common knowledge. The modern tendency is to regard it as more important to get to the truth of the matter than to quibble over distinctions which are, in many cases, impracticable, and a witness is permitted to state a fact known to or observed by him even though his statement involves a certain element of inference.
Johnson v. Graves, 179 Miss. 465, 176 So. 256; Miss. Cent. R. Co. v. Smith, 168 So. 604, 159 So. 562, 154 So. 533.
In the present consideration of this case, we are fortified not only by "the law of the case" as announced in the opinion of Mr. Justice Griffith, in the Johnson case, supra, but also with the "law of precedent," it having been followed by Mr. Justice McGowen on the former appeal of this case.
Brewer v. Browning, 115 Miss. 358, 76 So. 267; Johnson v. Success Brick Co., 61 So. 178, 104 Miss. 217.
As stated by the Supreme Court of the United States in Roberts v. Cooper, 20 How. 467, 15 L.Ed. 969, "there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticism on their opinions, or speculate on chances from changes in its members.
McDonald v. Green, 9 S. M. 138; Green v. McDonald, 13 S. M. 445; Smith v. Elder, 14 S. M. 100; Bridgeforth v. Gray, 39 Miss. 136; Swan v. Smith, 58 Miss. 875; Still Still v. Anderson, 63 Miss. 545; Nutt v. Knut, 84 Miss. 465, 36 So. 689; N Y Life Ins. Co. v. McIntosh, 46 So. 401; Johnson v. Success Brick Machine Co., 104 Miss. 217, 61 So. 178, 62 So. 4; Supreme Lodge, K.P. v. Hines, 109 Miss. 500, 68 So. 485; Cochran v. Latimer, 111 Miss. 192, 71 So. 316; Village of Zama v. Ayers Separate School District, 82 So. 313, 120 Miss. 444.
The court has on the former appeals held in this case that, in so far as the negligence of the appellants is concerned, the court below did not err in declining to direct a verdict for them; that there was sufficient evidence of their negligence to carry the case to the jury.
It is our contention now that the opinion in the Johnson case is the rule and guide for this court (as it was for the trial court) in determining whether or not we have succeeded in presenting it in the lower court, strictly and precisely according to that rule and guide.
G.M. N.R.R. Co. v. Hardy, 117 So. 536.
The refusal to give instructions announcing the law as declared by the Supreme Court on former appeal is error.
Moody v. Chas. Galigher Son, 1 Miss. Dec. 463.
If we have succeeded in establishing the primary fact that the eye beam of the trailer extending across the road was hard to see, then defendants were guilty of negligence and are consequently liable, and this is true regardless of whether the occupants of the car were likewise negligent or careless, even though they may have been grossly negligent.
Majers v. Okolona-Houston R. Co., 165 So. 416; Y. M.V. v. Williams, 74 So. 835; G. S.I.R. Co. v. Saucier, 104 So. 180; M. O.R. Co. v. Johnson, 141 So. 581; Y. M.V.R. Co. v. Pittman, 153 So. 382; Sec. 511, Code of 1930; C. G.R.R. Co. v. Lee, 115 So. 782; C. G.R.R. Co. v. Buford, 116 So. 817.
Division "B" of this court has twice decided that appellants were not entitled to a directed verdict.
Graves v. Johnson, 179 Miss. 465, 176 So. 256.
Division "A" of this court has also decided this same proposition in the same way.
Graves v. Hamilton, 177 So. 360.
We submit, therefore, that the proposition of appellants' right to a directed verdict has been thrice considered, and thrice decided by this court adversely to these appellants. We now feel that we would not show proper respect for this court and proper regard for the general stability of courts and their decisions if we further argued this proposition.
Johnson and Hamilton were not under the influence of intoxicating liquors.
The lower court properly refused appellants requested instructions that Hamilton and Johnson were each guilty of negligence proximately contributing to the fatal accident.
G. M.N.R. Co. v. Hardy, 117 So. 536.
The first instruction (page 488 of the record) is the law of the open road as laid down by Mr. Justice Griffith in the Johnson case and applied to this very accident. The instruction does expressly require a finding of facts by the jury.
The instruction is wholly based upon, and is in complete harmony with, sections or paragraphs (5) and (10) of Graves v. Johnson, 176 So., pages 259 and 260, respectively.
The instruction on page 487 of the record, being page 82 of appellants' brief, simply tells the jury, under all the facts and circumstances of the case, the care which the law required the men to exercise was "cautious vigilance;" and, if exercising such care, they still could not plainly and easily see the trailer, then plaintiffs were entitled to a verdict. The words, "under the law" were used for emphasis of the necessary requirement and strengthened the instruction against us. We used them as a precaution and safe-guard. They could have been omitted. But the instruction told the jury that both "care and cautious vigilance" were "required under the law." "Cautious vigilance" was the law. The jury were told that they must require of these men cautious vigilance under all the facts and circumstances of the case. Some of these "facts and circumstances," which the jury was entitled to consider may be found enumerated in the appellants' instructions.
Y. M.V.R.R. Co. v. Williams, 39 So. 489, 87 Miss. 344; Miss. Cent. R. Co. v. Hardy, 41 So. 505, 88 Miss. 732; Cumberland Tel. Tel. Co. v. Jackson, 48 So. 614, 95 Miss. 79; Miss. Cent. R. Co. v. Lott, 80 So. 277, 118 Miss. 816; City of Hattiesburg v. Beverly, 86 So. 590, 123 Miss. 759; Lamar Hardwood Co. v. Case, 107 So. 868, 143 Miss. 277.
The trial court properly permitted testimony both of appellants' and appellees' witnesses as to the relative color of the eye beam of the trailer and the concrete.
22 C.J., page 498, sec. 594, pages 527, 528, sec. 611, page 531, sec. 613, page 553, sec. 653, page 551, sec. 651, and pages 554, 555 and 556, sec. 655; Louisville N.R. Co. v. Steverson, 124 So. 205; 11 R.C.L., pages 568 and 569, sec. 5, page 593, sec. 21, and page 571, sec. 6.
Argued orally by Pat Eager and Ed Brewer, for appellant, and by C.M. Murphy and V.B. Montgomery, for appellee.
This is the second appearance of this case in this court, the former judgment having been reversed for erroneous instructions, 177 So. 360, — the opinion stating that the decision was ruled by the companion case, Graves et al. v. Johnson et al., 179 Miss. 465, 176 So. 256. The facts now shown of record, so far as concerns the issue of liability, are substantially the same as outlined in the case last cited, wherefore we will not enter upon a repetition of them; but we will, to some extent, summarize the effect of the holding in that case.
The defendant road contractor had a right to place a barricade at the point where the usable portion of the road ended and the unusable portion began. It would be almost impossible to construct hard surface roads unless such a right existed and was availed of. The purpose of such a barricade is to keep travelers off the unusable portion until it shall become fully capable of being used, from which it follows that the contractor has a right to use a barricade which will accomplish the stated purpose, and fully accomplish it. The law prescribes no particular form or style or kind of barricade, although the contractor should use the standard type of barricade prescribed by the Highway Commission so long as this type is effective. But here the wooden barricade so prescribed, was often broken down or removed, and the unfinished work was as a consequence damaged. In such a case, and when a particular barricade is being used and by experience that type is found to be ineffective, another may be adopted which is effective. Compare Hopkins, Trustee, v. Miller, Miss., 183 So. 378.
Having the right, under the circumstances, to use a substituted barricade, that right had only one qualification, and that is that the barricade shall be such that it could be readily or easily seen by those approaching it on the usable portion of the road and for a sufficient distance to safely allow the traveler to stop before arriving at the barricade. But the term "readily or easily seen" is to be interpreted as follows as respects the two following situations, — (1) readily and easily to be seen by those exercising ordinary care on a completed highway, and (2) readily and easily to be seen by those exercising vigilant caution and keeping a constant lookout on a highway under construction, if and when there is sufficient in the facts and circumstances to put the traveler on notice that the highway is, in fact, under construction.
When, under circumstances such as we have here before us, the contractor has supplied a barricade which fulfills the stated qualifications, he is within his legal rights and, of course, is guilty of no negligence; hence it is immaterial so far as concerns any liability on the contractor's part whether an injured traveler was or was not guilty of negligence.
The evidence strongly preponderates that the trailer barricade with which appellees' decedent collided was one which could be readily and easily seen by a traveler in the exercise of ordinary care; but is not conclusive on that point. The evidence is conclusive, however, that the trailer barricade could be readily or easily seen by an approaching traveler who was in the exercise of a vigilant caution and keeping a constant lookout. The evidence is in point of fact so nearly without dispute on the latter issue that an opposite conclusion would have no more than what is properly termed a scintilla upon which to rest.
It is undisputed that the road here in question was actually under construction. It follows from what has been said that if appellees' decedent knew that fact, a peremptory charge for appellant would have to be given. The remaining question is, then, whether the facts and circumstances shown in the evidence were sufficient to charge appellees' decedent with that knowledge. Upon that question appellees' case is weak almost to the point of extremity. We stated in the former opinion, 176 So. page 260, that "the present record contains enough to show that an impartial jury, under correct instructions, ought to find, and therefore probably would find, that the deceased knew or ought to have known that the road was under construction;" and we further stated that whether the verdict was against the overwhelming weight of the evidence on the stated point, we would not then decide, for the reason that the judgment was being reversed on other points.
Having thus pointed out in the former opinion the weakness of the case on the stated point, we had expected that, if it could be truthfully done, some further aid might be furnished one way or another in the matter of a more definite and dependable showing upon this issue. The present record discloses that some effort was made along that line, but for one reason or another these efforts were substantially of no help.
We must now proceed, therefore, to a decision upon the present record, and so doing we have but little hesitancy, in fact none at all, in pronouncing the verdict upon the issue mentioned in the two preceding paragraphs as being contrary to the overwhelming weight of the evidence. We do not comment on all phases of the evidence on that point, since the case is to be retried; but there are at least six outstanding major circumstances of fact which ought to have conveyed to any traveler of average intelligence and normal powers of observation the notice, and to such an extent as to be equivalent to knowledge, that the road was then under construction, and this does not include the large "Road Under Construction" sign at the forks thereof in the southern portion of the town of Belzoni; and these six evidentiary features are without substantial dispute. Our only doubt on this question is whether appellants were entitled, or not, to a peremptory instruction upon it; but as we have already ruled against the peremptory in the former opinions, we do not consider that the situation is such as to justify us in setting aside or overruling the law of the case.
One of the six outstanding or major circumstances to which we have referred is this: The evidence shows that the concrete was being laid at the rate of about 700 to 800 feet per day. The trailer barricade was being moved southward day by day as the concrete became hard enough to stand the travel to which it would be subjected. It was moved southward 700 to 800 feet on the afternoon of the accident and stood then squarely next to the green and unfinished work. How could a traveler, who must have his eyes on the road at least within every 100 or 200 feet, have failed to observe on a cloudless afternoon that this was new concrete work, and becoming newer and newer as he proceeded south, and that he was approaching the end where the newness of the work would allow him to proceed no farther, and where in consequence he should expect a barricade to stand? But, as stated, there are not less than five other cumulative features, and some of them even stronger than the above.
We think it possible that the jury may have been misled by the wording of the instruction given at the request of appellees, not numbered in this record but appearing at page 488, transcript. But if they had read and understood all the instructions and considered them together and as a whole, as they should have done and as we must assume they did do or tried to do, the law was fairly well presented, as regards the several aspects of the case, although not so distinctly by either side as could have been done. It is said that the instructions largely followed the very language of the court in Graves v. Johnson. We have heretofore cautioned against the use of excerpts from opinions in the drawing of instructions. See Crawford v. City of Meridian, 174 Miss. 875, 879, 165 So. 612. Language which is apt in a judicial opinion and which is plainly to be understood by members of the legal profession in the connection with which it is used, may not be so to the laymen on the jury, particularly as they have not the advantage of the entire context.
Reversed and remanded.