Opinion
December 31, 1948.
1. Appeal — verdict set aside, only when.
A verdict should be set aside only when it is manifest from the evidence and surroundings that it is not a fair and true verdict.
2. Trial — peremptory charge, not proper when evidence substantially conflicting.
A peremptory charge is properly refused when the evidence on the dominant issue of negligence is substantially conflicting.
3. Trial — motor vehicles — instruction as to speed within range of vehicle's lights.
An instruction that if the driver of plaintiff's motor vehicle was driving at night at such speed as not to permit him to avoid striking vehicles coming within the range of his lights, and that same was the sole proximate cause of the collision, is proper when substantially supported by the evidence.
Headnotes as approved by Montgomery, J.
APPEAL from the circuit court of Leake County; PERCY M. LEE, J.
Jackson, Young, Daniels Mitchell, for appellant.
The verdict of the jury was contrary to the overwhelming weight of the credible and believable evidence and the lower court erred in refusing plaintiff's motion for new trial. Two entirely different versions were given as to the manner in which the accident occurred. One version was supported by the testimony of plaintiff's witnesses and by one of the defendant's witnesses, the other version was supported by the defendant's testimony alone.
The defendant's testimony is not only contradicted by all other witnesses testifying as to the occurrence of the accident, but it wholly fails to deny or explain the physical facts established by uncontradicted testimony. As hereinbefore shown, the position of the defendant's automobile after the accident was established by Officer Gray and Mr. Mize to be on the northeast corner of the intersection with one wheel resting on the curb, the car headed in a northeasterly direction.
Defendant's testimony does not deny this. Thus, according to the defendant's testimony, his automobile which was headed north when struck by a bus headed north would have to have been knocked thirty-five to forty feet to the south in order to be in the position where undisputed testimony placed it. Obviously, this is not possible. However, under plaintiff's testimony the location of the car is natural and probable from the testimony as to how the accident occurred. The heavy bus proceeding in a northerly direction being struck on its right side by the defendant's car headed in a westerly direction would by its momentum cause defendant's car to change its direction to correspond with the direction in which the bus was proceeding. The car would swing to the right (north), the left side of the car would be thrown against the side of the bus and the car would be headed in a northerly direction. The defendant's version of the accident must be completely rejected because of this fact alone is not open to dispute. See Elzig v. Gudwangen, 91 F.2d 434,440 and authorities there cited.
All of the witnesses except the defendant and even including the defendant's witness, Mrs. Richardson, agree as to manner in which the accident occurred. The physical facts support the plaintiff's version of the accident, but under defendant's version they cannot be explained. Defendant obviously is very much interested in the outcome of the suit. Defendant alone is impeached on his testimony as to the manner in which the accident occurred and the impeaching testimony is given by a police officer who has no interest in the outcome of the suit. Under such circumstances the plaintiff respectfully submits that the verdict of the jury is undoubtedly contrary to the overwhelming weight of evidence and the lower court erred in refusing to grant plaintiff's motion for a new trial. This court has so held in many instances where one of the above elements was present. In Mobile Ohio Railroad Co., et al v. Bennett, 127 Miss. 413, 90 So. 113, where appellee alone contradicted eight witnesses whose testimony was not impeached this court reversed the cause for a new trial. In Universal Truckloading Co. v. Taylor, et al, 174 Miss. 353, 164 So. 3, 4, which was very similar to the present case in that the decisive factor of the case was the point of impact, the court laid particular emphasis upon the fact that the location of the debris was not in dispute and reversed the case holding that the verdict of the jury was against the overwhelming weight of the evidence.
The lower court erred in refusing and declining to grant plaintiff's requested peremptory instruction on the issue of the defendant's negligence. Plaintiff realizes that even though the court finds the verdict of the jury to be against the overwhelming weight of the evidence that it is only on rare occasions that the court will grant a peremptory instruction to the party presenting an overwhelming case where the other party's evidence, though weak, has presented a defense to the action if accepted as true. However, our court has recognized that under certain circumstances it becomes the duty of the court to grant the peremptory instruction. King, et al, v. Rowan, et al, 82 Miss. 1, 34 So. 325, 328. See also Fore v. Illinois Central R.R. Co., 172 Miss. 451, 160 So. 903, 904.
From these decisions it is apparent that if in the present case the Supreme Court, after an examination of the records, can say that the verdict of the jury was manifestly wrong, as is convincingly and indubitably shown by the testimony, or that the defendant has failed to present substantial or reasonable testimony to sustain his version of the accident, then the Supreme Court should grant plaintiff's requested peremptory instruction.
Plaintiff respectfully submits that the entire testimony of the present case discloses the necessary elements to warrant this court in allowing the plaintiff's requested peremptory instruction. As aforesaid, every witness except the defendant and even including the defendant's witness, Mrs. Robertson, agreed that the accident occurred in the intersection. All of the physical facts support this testimony, while under the defendant's version of the accident the undisputed physical facts cannot be explained.
What are the rights of a driver proceeding across an intersection on a through street? These rights have been expressly defined by our court on several occasions. In Myers v. Timms, 161 Miss. 872, 138 So. 578, 579, our court set forth the Mississippi rule as follows: ". . . When a vehicle traveling on a right of way street arrives at the intersection of a cross street at approximately the same time that a vehicle on the cross street arrives at the point of intersection then the vehicle on the right of way street has the privilege to proceed and this is the extent of the rule . . ." See also Gough v. Harrington, et ux., 163 Miss. 393, 141 So. 280, 282.
The trial court committed reversible error in granting instruction No. 1 for the defendant, there being no evidence to support such instruction. It is well settled in Mississippi that instructions granted by the trial court must conform to the issues and proof. The most recent pronouncement of this rule by the Supreme Court of Mississippi appears in the decision of Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426, 428, where the court states: "Instructions, regardless of the theoretical law announced thereby, should be applicable to the issues and proof of the particular case. Dennis v. Jones, 31 Miss. 606; Lombard v. Martin, 39 Miss. 147; Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288; Yazoo and M.V.R. Co. v. Aultman, 179 Miss. 109, 173 So. 280; Interstate Life and Accident Company v. Cooley, 150 Miss. 502, 117 So. 267. See also New Orleans Great Railroad Co. v. Frazer, 158 Miss. 407, 130 So. 493, 496; New Orleans and N.E.R. Co., et al v. Miles, et al, 197 Miss. 846, 20 So.2d 657, 658; O'Reilly v. Hendricks, 2 S. M. (10 Miss.) 388, 397; and Hines v. McCullers, 121 Miss. 666, 83 So. 734, 737, where our Supreme Court expressly recognizes the error of instructing the jury that if they believe that certain facts constitute the sole proximate cause of the accident, they will find for a certain litigant, in a case in which the proof does not justify the finding that those facts were the sole proximate cause of the accident. In that case, under an instruction granted for the plaintiff, the jury was authorized to find for the plaintiff if they believed that the failure of the defendant railroad to maintain a warning sign at a railroad crossing was the proximate cause of the accident. The court, in holding that the granting of this instruction was erroneous because not supported by the evidence, said: ". . . It is manifest from the evidence that the absence of the sign in no way contributed to the accident. The purpose of the requirement that such a sign be placed at the intersection of a highway with a railroad track is to call the attention of travelers on the highway to the presence of the track and of the necessity of looking out for an approaching train. Beatrice was thoroughly familiar with this road and the railroad crossing, knew that she was about to cross the track, that the train was then due, and in fact looked to see if it was approaching." The effect of granting such an erroneous instruction is discussed in Williams v. City of Gulfport, supra.
It is obvious from these decisions that it is error to grant an instruction which finds no support in the evidence and is reversible error if the opposing party is prejudiced thereby. Thus it is necessary to turn to the record to determine whether there is any evidence upon which the jury would be warranted in holding that the failure, if any of the plaintiff's driver to drive the bus at such a speed as would enable him to avoid striking vehicles coming within the range of his lights, was the sole proximate cause of the accident.
In the first place, the plaintiff respectfully submits that there is no evidence upon which the jury could find that the plaintiff's driver was operating the bus at such a speed that he could not avoid striking vehicles coming within the range of his lights. But assuming the facts to be as defendant testified, that the bus was traveling at a speed of forty miles per hour, it is not disputed that the bus could be stopped within forty to fifty feet. To determine whether the bus could be stopped within the range of its lights, it would be necessary to determine whether the lights illuminated the street for a distance of forty to fifty feet. The record is entirely void of any testimony as to the strength of the lights on plaintiff's bus. Upon what facts could the jury determine whether the plaintiff's driver was proceeding at a speed which would not allow him to avoid striking a vehicle within the range of his lights, if the jury only knows within what distance plaintiff can stop the bus, but does not know whether the lights of the bus are effective to the extent of that distance? The defense of contributory negligence of the plaintiff or of the plaintiff's negligence being the sole proximate cause of the accident is an affirmative defense and the burden of proof is upon the defendant. M. O.R.R. Co. v. Campbell, 114 Miss. 803, 75 So. 554, and Yazoo and M.V.R. v. Lucken, 137 Miss. 572, 102 So. 393, 398.
It was necessary, therefore, that defendant establish the facts upon which the jury would be warranted in finding that plaintiff's driver was driving at such a speed that he could not stop or otherwise avoid vehicles coming within the range of his lights. For all the evidence shows, the plaintiff's bus might have had lights which were effective for a distance of 100 feet, in which event plaintiff's driver could have stopped the bus in half the effective distance of his lights, even if he were driving at the excessive speed of forty miles per hour, as testified by the defendant. As aforesaid, the defendant has failed to establish the necessary facts and was, therefore, not entitled to his first instruction, which should have been granted defendant only in the event he had established the prerequisite facts.
O.H. Barnett, A.M. Warwick, and Thos. H. Watkins, for appellee.
It is apparent counsel having quoted at length from the testimony, that there was a strong conflict between the two drivers as to what occurred at the time of the collision. The appellee testified that as he approached the intersection from the East on Poplar Boulevard he stopped at the intersection and then turned right onto Jefferson when the bus of the appellant entered the intersection from the South at a dangerously rapid rate of speed and ran into the left side of appellee's car. The driver of appellant's bus was equally positive that he approached the intersection going from 8 to 10 miles an hour; that he applied his brakes as he entered the intersection and brought his bus to a complete stop in the intersection just prior to the time that the appellee crashed into the bus in a head-on collision.
Admitting this conflict in the facts, counsel for appellant repeatedly make the statement in their brief that appellee's version of the accident was not corroborated either by the physical facts or by any reliable or unimpeached witness. We invite your Honors' attention to the record. The conflicts of fact involve three points. (1) The speed of the bus immediately prior to and at the time of the collision. (2) The place where the collision occurred. (3) The question of whether appellee had a head-on collision into the side of the bus or whether the bus struck the left side of appellee's car.
We find that no witness corroborates appellant's driver's testimony to the effect that he approached the intersection going 8 or 10 miles an hour and stopped prior to the collision. Every witness which estimated the speed of the bus placed same between 25 and 45 miles an hour at the time of the collision. It further appeared from appellant's witnesses that the bus would have been practically out of control of the driver when going 25 miles an hour at that particular location. We respectfully submit that the overwhelming weight of the testimony was with appellee on the question of the speed and the manner in which appellant's bus was being driven immediately prior to and at the time of the collision.
Under the evidence disclosed by the record in this case, the authorities cited by counsel for appellant amply support the rule announced by this court on innumerable occasions that it will not disturb a judgment based on a jury verdict where there is reasonable evidence to support the jury's finding.
We respectfully submit that it could not be said in the present case that the verdict is clearly contrary to the overwhelming weight of the evidence. We submit that the record disclose that the overwhelming weight of the evidence supports the verdict. The rule was correctly stated by this court in Shelton v. Underwood, 174 Miss. 169, 163 So. 828. See also Faulkner v. Middleton, 186 Miss. 355, 188 So. 565; Trotter v. Staggers, 28 So.2d 237; Mississippi Power Co. v. McCrary, 179 Miss. 427, 176 So. 165; Genola v. Ozburn, 11 So.2d 910; Friedman v. Allen, 118 So. 828; Greer v. Pierce, 167 Miss. 65, 147 So. 303; Perez v. Fayard, (C.C.A. 5th), 64 F.2d 667.
Counsel for appellant complains of the giving of the instruction Number One for the defendant. Appellant contends that there was no evidence to support this instruction. We respectfully submit that counsel for appellant is mistaken. Again we call attention to the admitted fact that it was a cold rainy night and visibility was poor. Mrs. A.C. Robertson testified that as the driver of the bus approached the intersection of Jefferson and Poplar Street going down a very steep grade, he was driving "as fast as he could have gone" and that "he was shooting down that hill," and he did not apply the brakes or slacken speed at any time prior to the collision. Appellant's witness, L.B. Mize, testified that the bus could not have been traveling more than 25 miles an hour because at that speed in that locality the bus would bounce so that it would not stay on the ground. Appellant's witness, Gray, testified that the bus could not have been going less than 25 miles an hour at the time of the collision. The appellee testified that the bus was traveling between 40 and 45 miles an hour. These facts, together with the admitted physical fact after the collision the bus jumped the curb on the west side of Jefferson Street, travelled over a hundred feet and went into a deep ravine would be ample grounds for a finding on the part of the jury that the driver of the bus was traveling at a speed which did not permit him to avoid striking vehicles coming within the range of his lights and that same was the sole proximate cause of the collision. In other words, the driver of the bus failed to have same under proper control particularly in view of the existing weather conditions. In Kulliman Co. v. Samuels, 148 Miss. 871, 114 So. 807, complaint was made of almost identical instructions, and the complaining part's testimony that he was driving 8 miles an hour and had his car under control was undisputed by any other witness. The physical facts were such, however, that the jury might find therefrom that he in fact did not have the car under control and that when blinded by approaching lights he failed to reduce the speed of the car sufficiently to avoid striking a person coming within the range of his vision. The court held that the instruction was proper.
We invite the court's attention to the various instructions obtained by both the plaintiff and the defendant which appear in the record. These instructions when read as a whole properly and adequately cover the legal principles involved in the trial of the case. Greer v. Pierce, supra; Simmons v. Dantzler, 152 Miss. 337, 118 So. 828.
This case involves a collision between a Buick car, driven by M.G. Harkins, and a bus, belonging to and being operated by Jackson City Lines. The collision occurred at the intersection of North Jefferson Street and Poplar Boulevard, in the City of Jackson, at about 8:00 o'clock p.m. on December 19, 1946. The Jackson City Lines sued Harkins in the circuit court of Leake County for costs of repair of the bus, and loss of service of the bus for 39 days, aggregating the total sum of $4,749.94. There was a jury verdict and judgment for the defendant and Jackson City Lines appeals.
Appellant raises and argues three points, the first of which is that the verdict of the jury was contrary to the overwhelming weight of the credible and believable evidence, and the lower court erred in refusing plaintiff's motion for a new trial. We have carefully examined and considered the evidence heard in the court below and on that evidence we cannot say that the verdict is clearly contrary to the overwhelming weight of the evidence. It was held in Shelton v. Underwood, 174 Miss. 169, 163 So. 828, 830, that, before we can reverse, it must be such a verdict as would cause an enlightened conscience to shrink. The jury has opportunity to see the witnesses and to judge on their fairness, bias, or prejudice, or lack thereof, and from the whole situation arrive at the truth of the matter. The very value of jury trial consists in the fact that it is a body of twelve men of fair and impartial minds. (Hn 1) A verdict should be set aside only where it is manifest, from the evidence and surroundings, that it is not a fair and true verdict and we cannot say such of the verdict in this case. Faulkner v. Middleton, 186 Miss. 355, 188 So. 565, 190 So. 910; Kullman Co., et al. v. Samuels et al., 148 Miss. 871, 114 So. 807.
Appellant's second point is that the lower court erred in refusing to grant plaintiff's request for a peremptory instruction on the issue of the defendant's negligence. (Hn 2) The evidence was conflicting on the question of defendant's negligence and this issue was one to be passed upon by the jury under proper instructions from the court. Under the evidence in this case, the trial court was eminently correct in refusing to grant the requested instruction. Mobile O.R. Co. v. Mullins, 70 Miss. 730, 12 So. 826; Swan v. Liverpool L. G. Ins. Co., 52 Miss. 704.
(Hn 3) It is next contended by appellant that the trial court erred in granting instruction number one for defendant, which reads as follows: "The court instructs the jury for the defendant, M.G. Harkins, that if you believe from a preponderance of the evidence in this case that the driver of plaintiff's bus was operating same at the time of the collision complained of, at night over the public streets of Jackson, Mississippi, at such speed as not to permit the driver to avoid striking vehicles coming within the range of his lights, and that same was the sole proximate cause of the collision, then it is your sworn duty to return a verdict for the defendant, M.G. Harkins."
It is urged in the brief for appellant that the giving of this instruction was erroneous for the reason that, while the proof shows the distances in which the bus could be stopped at various speeds, there is no proof of the effective distance of the range of the lights on the bus and hence the evidence afforded no basis for the granting of the instruction.
The proof shows that this collision occurred at the intersection of North Jefferson Street and Poplar Boulevard in the City of Jackson. The bus was traveling north on North Jefferson, which extends north and south and there is a decline as it goes down to its intersection with Poplar Boulevard, which runs east and west. North Jefferson is a through street. There is a stop sign on the north side of Poplar Boulevard, set with reflector buttons, clearly visible as one travels west, as the defendant was on the night of the collision. There is a street light on the southwest corner of the intersection. The bus was traveling north. It is the contention of appellant that as the bus approached the intersection with Poplar Boulevard, the driver looked in both directions and seeing no one, the bus entered the intersection and proceeded to a point where the front of the bus was almost even with the curb on the north side of Poplar, when it was struck by defendant's car, head-on, on the right side of the bus, at a point just behind the right front door of the bus. It is defendant's contention that the collision did not occur in the intersection at all, but occurred some thirty-five feet or more north of the intersection on North Jefferson Street. Defendant contends that as he approached North Jefferson Street, traveling west on Poplar Boulevard, it was his intention to turn right and go north on North Jefferson; that he stopped at the above mentioned stop sign and looked right and left and then entered the intersection and, as he was in the act of making the turn north he saw the lights of the bus as it came over the hill and started down the decline toward the intersection; that after he had straightened out his line of travel on Jefferson and had traveled some thirty-five or more feet the bus pulled alongside of his car and instead of continuing on past him a reasonable distance before pulling over to its right of the street in front of him, it pulled over too soon right directly in front of him, the cars being lined up in the shape of a V at the time of the collision. The location of defendant's car on Jefferson after the accident is in dispute. The physical facts as to the damage done the defendant's car support the theory of the defendant.
It was raining hard and the night was very cold. Visibility was very poor. It could well be and the jury could properly find that because of poor visibility, fogged up and rain spattered glasses in bus windows, the bus driver, in passing defendant's car, moved his bus over in front of defendant's car into an area beyond the field of vision afforded by the lights on the bus under existing conditions, and while operating the bus at a rate of speed at which the driver was unable to stop within his limited range of vision and that such was the proximate cause of the injury.
The law announced in the instruction is sound. Such is the holding of this Court in at least two cases: Frazier v. Hull, 157 Miss. 303, 127 So. 775, and Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840. We think it had sufficient application to the evidence in this case to make it proper for the court to give it at defendant's request.
We find no reversible error in this record and the judgment of the lower court will be affirmed.
Affirmed.