Opinion
No. 42271.
April 16, 1962.
1. Death — motor vehicles — rear-end collision — evidence sustained verdict for defendants.
In action arising out of rear-end collision between automobile in which plaintiffs' decedent was occupant and defendants' overtaking truck, evidence on issue whether truck had had time to avoid collision when decedent's automobile entered highway sustained verdict for defendants.
Headnote as approved by McGehee, C.J.
APPEAL from the Circuit Court of Madison County; LEON F. HENDRICK, J.
Fancher Fancher, Canton; Howie, Howie Montgomery, Barnett, Montgomery, McClintock Cunningham, Jackson, for appellants.
I. The trial court erred in refusing to grant the peremptory instruction requested by the plaintiffs. Arnold v. Reece, 229 Miss. 862, 92 So.2d 237; Bridges v. Jackson Elec. Ry. Light Power Co., 86 Miss. 584, 38 So. 788; Cosby v. Flowers, 248 Ala. 227, 30 So.2d 694; Hadad v. Lockeby, 176 Miss. 660, 169 So. 691; Hemphill v. Mississippi Power Co., 84 F.2d 971; Moak v. Black, 230 Miss. 337, 92 So.2d 845; Southern R. Co. v. Floyd, 99 Miss. 519, 55 So. 287; Standard Coffee Co. v. Carr, 171 Miss. 714, 157 So. 685; Teche Lines v. Bateman, 162 Miss. 404, 139 So. 159; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Sec. 8250, Code 1942.
II. The trial court committed reversible error in granting the defendants the unnumbered instruction shown on page 23 of the record. The offending instruction reads as follows: "The Court instructs the jury for the defendants that under the law of the State of Mississippi no person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving an appropriate signal in the event any other vehicle may be affected by such movement; that a signal of intention to turn left shall be given continuously for a reasonable distance before turning; that such signal may be given either by means of the hand and arm or by a signal lamp or device; that any signal given by the hand and arm for a left turn shall be given by extending the hand and arm horizontally; and if you believe from the evidence in this case that Thelma Brown turned the automobile in which Doris Jackson was riding from the east shoulder into the main traveled portion of U.S. Highway 51 without having given a lawful signal of her intention to do so and at a time when another vehicle was affected by such movement, then the said Thelma Brown was guilty of negligence as a matter of law; and if you believe from the evidence in this case that such negligence, if any, on the part of Thelma Brown was the sole proximate cause of the collision in question, then it is your sworn duty to return a verdict for the defendants, Mosby's Truck Service, Inc. and Ivory Chambers." Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42; Bridges v. Jackson Elec. Ry. Light Power Co., supra; Illinois Cent. R. Co. v. Farris, 259 F.2d 445; Moak v. Black, supra; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Southern R. Co. v. Floyd, supra; Superior Oil Co. v. Richmond, 172 Miss. 407, 159 So. 850; Terry v. Smylie, 161 Miss. 31, 133 So. 662; 38 Am. Jur., Sec. 231 p. 916.
III. The trial court committed reversible error in granting defendants' unnumbered instruction shown on page 24 of the record. This instruction reads as follows: "The Court instructs the jury for the defendants in this case that it was the duty of Thelma Brown to maintain a reasonable lookout, for other vehicles using the highway at the time of the collision complained of; and it was the duty of Thelma Brown to have the automobile in which Doris Jackson was riding under reasonable control; and if you believe from the evidence in this case that Thelma Brown did not maintain a reasonable lookout for other vehicles using the highway and did not have the automobile in which Doris Jackson was riding under reasonable control, then the said Thelma Brown was guilty of negligence; and if you believe from the evidence in this case that such failure, if any, on the part of Thelma Brown as to either of these duties was the sole proximate cause of the collision with the defendants' truck, then it is your sworn duty to return a verdict for both Mosby's Truck Service, Inc., and Ivory Chambers." Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Dixie Stock Yard v. Ferguson, 192 Miss. 166, 4 So.2d 724; Moak v. Black, supra; Rivers v. Turner, 223 Miss. 673, 78 So.2d 903; Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288.
IV. The Court committed reversible error in granting to defendants the unnumbered instructing appearing on page 26 of the record. This instruction reads as follows: "The Court instructs the jury for the defendants that under the law of the State of Mississippi it was the duty of Thelma Brown to keep the automobile in which Doris Jackson was riding under constant control so that it could be easily stopped within a reasonably short space or distance; and if you believe from the evidence in this case that Thelma Brown then and there so driving the said automobile did not keep it under constant control and that she drove said automobile in a manner that was hazardous to other persons or vehicles on the highway and that this negligence, if any, on the part of Thelma Brown was the sole proximate cause of the accident in question, then you must return a verdict for both defendants." Moak v. Black, supra; Rivers v. Turner, supra.
V. The Court committed reversible error in granting the unnumbered instruction shown on page 28 of the record. This instruction reads as follows: "The Court instructs the jury for the defendants that under the law of the State of Mississippi every automobile when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such automobile; and if you believe from the evidence in this case that Thelma Brown was operating the automobile in which Doris Jackson was riding at a time when such automobile was not equipped with brakes adequate to control the movement and to stop and hold such automobile, then she was violating the laws of the State of Mississippi and guilty of negligence as a matter of law; and if you believe that such negligence, if any, on the part of Thelma Brown was the sole proximate cause of the collision in question, then you must return a verdict for the defendants." Rivers v. Turner, supra.
VI. The trial court erred in granting defendant the unnumbered instruction shown on page 29 of the record. This instruction reads as follows: "The Court instructs the jury for the defendants that if you believe from the evidence in this case that Thelma Brown negligently turned the automobile in which Doris Jackson was riding from the east shoulder of the highway into the main traveled portion of U.S. Highway 51 at a time when the truck driven by Ivory Chambers was approaching so closely as to constitute an immediate hazard, then Thelma Brown was guilty of negligence; and if you believe that such negligence, if any, on the part of Thelma Brown was the sole proximate cause of the collision in question then you must return a verdict for both defendants." Moak v. Black, supra.
VII. The verdict of the jury is contrary to the overwhelming weight of the evidence. Beard v. Williams, 172 Miss. 880, 161 So. 750; Belk v. Rosamond, supra; Faulkner v. Middleton, 186 Miss. 355, 188 So. 565; Moak v. Black, supra; Vaughan v. Bollis, 221 Miss. 589, 73 So.2d 160; Wayne County Mfg. Co. v. Shirley (Miss.), 15 So.2d 624; Sec. 8158(a), Code 1942.
Nelson Cauthen, Canton; Lipscomb Barksdale, Jackson, for appellees.
I. The trial court did not err in refusing to grant the peremptory instruction requested by the plaintiff. Bailey v. Collins, 215 Miss. 78, 60 So.2d 587; Buntyn v. Robinson, 233 Miss. 350, 102 So.2d 126; Clark v. Mask, 233 Miss. 65, 98 So.2d 467; Flora v. Fewell, 241 Miss. 345, 131 So.2d 187; Graves v. Johnson, 179 Miss. 465, 176 So. 256; McDonough Motor Express v. Spiers, 179 Miss. 692, 176 So. 723; McKendrick v. Lyle Cashion Co., 234 Miss. 325, 105 So.2d 480; Moak v. Black, 230 Miss. 337, 92 So.2d 845; Mock v. Natchez Garden Club, 230 Miss. 377, 92 So.2d 562; Schumpert v. Watson, 241 Miss. 199, 129 So.2d 627; Somerville v. Keeler, 165 Miss. 244, 145 So. 721; Standard Coffee Co. v. Carr, 171 Miss. 714, 157 So. 685; White v. Weitz, 169 Miss. 102, 152 So. 484; Secs. 1455, 8060-8285.41, Code 1942.
II. The trial court did not commit error in granting defendants' instruction contained on page 23 of the record. McDonough v. Spiers, supra; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Secs. 8192, 8193, 8194, Code 1942; 88 C.J.S., Sec. 393(a) p. 1068.
III. The trial court did not commit error in granting defendants' instruction contained on page 24 of the record. Denman v. Denman, 242 Miss. 59, 134 So.2d 457; Ivy v. Sconier, 234 Miss. 390, 106 So.2d 399; Myers v. Giroir, 226 Miss. 335, 84 So.2d 525.
IV. The Court committed no error in granting defendants' instruction appearing on page 26 of the record.
V. The Court did not commit error in granting the defendants' instruction on page 28 of the record. Adcock v. McDonald, 224 Miss. 122, 79 So.2d 715; Arnold v. Reece, 229 Miss. 862, 92 So.2d 237; Centennial Ice Co. v. Mitchell, 215 Ala. 688, 112 So. 239; Continental Southern Lines v. Klaas, 217 Miss. 795, 65 So.2d 575; Jackson v. LaFollette Hardware Lumber Co., 101 F. Supp. 916, 193 F.2d 647; Siegeler v. Neuweiler, 91 N.J.L. 273, 102 A. 349; Snowden v. Skipper, 230 Miss. 684, 93 So.2d 834; Sec. 8249(a), Code 1942.
VI. The Court did not err in granting defendants' instruction shown on page 29 of the record. Cadwell v. Anschultz, 4 Cal.2d 709, 52 P.2d 916; Cobb v. Williams, 228 Miss. 807, 90 So.2d 17; Jones v. Baker, 242 Miss. 833, 135 So.2d 846; Meo v. Miller, 227 Miss. 11, 85 So.2d 568; Miller Petroleum Transporters, Ltd. v. Price, 237 Miss. 284, 114 So.2d 756; Moak v. Black, supra.
VII. The verdict of the jury was not contrary to the overwhelming weight of the evidence. Arnold v. Reece, supra; Buntyn v. Robinson, supra; Byram v. Snowden, 224 Miss. 74, 79 So.2d 541; Delta Chevrolet Co. v. Waid, 211 Miss. 256, 51 So.2d 443; Morris v. Boleware, 228 Miss. 139, 87 So.2d 246; Parsons v. Lambert, 209 Miss. 649, 48 So.2d 143; Snowden v. Webb, 217 Miss. 664,
64 So.2d 745; Wallace v. Billups, 203 Miss. 853, 33 So.2d 819; Sec. 8280, Code 1942.
The appellants, who are the parents, brothers and sisters of Doris Jackson, deceased, brought this suit to recover damages for personal injuries to deceased, in the Circuit Court of Madison County, Mississippi, against the appellees Mosby Truck Service, Inc., and Ivory Chambers, driver of the truck which collided with the automobile in which Doris Jackson was riding when she was killed.
The proof discloses that about 10:30 P.M. on November 18, 1960, Doris Jackson, the deceased, was a passenger in an automobile which was being driven north by her mother on the east paved lane of U.S. Highway 51 a short distance north of Tougaloo in Hinds County, Mississippi, when it is alleged that "suddenly and without warning", the corporate defendant's truck, driven by its agent and servant Ivory Chambers, struck the rear end of the car occupied by the deceased, the front end of the truck striking the rear end of the car with a tremendous blow, and knocking it off the highway and injuring the said Doris Jackson so severely that she subsequently died as a result of the said accident. The declaration then sets forth in some detail the duty of the defendants to have kept the truck under reasonable and proper control, to obey the rules of the road, to drive at a reasonable speed, and to keep a reasonable and proper lookout ahead, etc.
The proof on behalf of the appellees was to the effect that the automobile in which Doris Jackson was riding, upon leaving a nearby filling station, had suddenly, negligently, and without warning or signal turned from the east shoulder of the highway onto the paved portion thereof directly in front of the truck driven by the defendant Chambers, and that the turning of the automobile from a direct course without giving a proper and lawful signal of the driver of the car to make such a turn, was the sole proximate cause of the collision and injuries.
Ivory Chambers testified in effect, and we quote a summary of his testimony taken from the appellants' brief, with reference to the action of the automobile in which Doris Jackson was riding, the following: "It gradually went off the road, and he (Chambers) thought it was going to stay off, but it came back on the highway, passed the barricade and went off on the shoulder again. He testified he thought it was going to stay off but when it pulled back on `I didn't have time to do anything but try to stop, and that's all I could do, put on my brakes'."
It seems to have been the theory of the defendant Ivory Chambers that there was a small fence that went down to the paved highway about 400 feet north of the Site Gas Station at which the car in which Doris Jackson was riding had theretofore stopped, and that there were some piles of gravel on the shoulder of the highway shortly north of the little fence or barricade, and that the car in which Doris Jackson was riding had endeavored to go back on the highway by going around the end of the little fence, and then again coming back onto the paved highway to avoid the piles of gravel, which are not plainly visible from an examination of the photographs, and that the truck driven by Ivory Chambers was then so near the automobile (about 25 feet away) that it was impossible for him to stop and avoid the collision.
(Hn 1) In other words, the testimony as to whether the truck had time to avoid colliding with the car ahead was conflicting and presented an issue of fact for the jury.
The driver of the truck did not blow a horn to warn the automobile of his approach from the rear thereof and the jury could have believed that his failure to do so was the sole proximate cause of the collision, but the jury evidently did not so believe. Moreover, the plaintiffs did not request or obtain an instruction that it was the duty of the driver of the truck to have warned the plaintiffs of his approach by sounding a horn, as the law requires.
A careful reading of the record discloses that the testimony regarding the happening of the accident was in conflict and the Court here is of the opinion that an issue of fact was presented for the decision of the jury, and the Court is unable to say that the verdict was against the overwhelming weight of the testimony. The verdict and judgment in favor of the defendants must therefore be affirmed.
Affirmed.
Ethridge, Gillespie, McElroy, and Jones, JJ., concur.