Summary
holding that the mere asking of a potentially prejudicial question was not grounds for a mistrial when the court sustained an objection and instructed the jury to disregard the question
Summary of this case from Smith v. Mississippi Coast OB/GYNOpinion
No. 37447.
March 27, 1950.
1. Trial — continuance — jury — motion to quash.
The jury box was exhausted as to two of the districts and the jury for the week was empanelled from the other three districts, whereupon appellant applied for a continuance for the term in order that a jury in his case might be taken from all districts: Held that even if the point were well taken it should have been presented by a motion to quash and that in either event the overruling of the request or motion would not be reversible error since the course pursued in empanelling the jury was not such a radical departure from the statutory scheme as to make it reversible.
2. Highways — four lane traffic — rule as to turning off at intersection — liability for violation of rules.
When a highway consists of four lanes, the two north lanes being for traffic from east to west and the two south lanes for traffic from west to east, an eastbound driver, who intends to turn to his left into a north and south intersecting street, properly approaches the intersection by taking to the north lane of the two lanes in the south half of the highway, and when an eastbound driver improperly holds to the south lane on the south half of highway and then turns sharply ahead into the mentioned north and south street and thereby causes a collision with the automobile approaching the intersecting street on its proper or north side of the south half of the highway, the offending automobile is liable for the injury and damages thereby proximately caused, and instructions are proper or improper according to their appropriateness to the stated facts. Sec. 8189 (b) Code 1942.
3. Trial — improper questions as to defendant's occupation — when not reversibly prejudicial.
When the defendant in a personal injury action admits without objection that he is engaged illegally in the operation of a bar, there is not such harm in a further unanswered question, whether he does not also operate slot machines, as to require a reversal when the court admonished the jury to disregard the question as having no bearing on the case.
4. Damages — personal injuries — medical expenses.
An instruction in a personal injury case limiting the recovery for medical expenses to such expenses as already paid is erroneous because it would have prohibited recovery for any medical expenses which might reasonably be expected to have to be paid in the future.
5. Damages — personal injury case — when not excessive.
An award of $2000 for personal injuries to a woman who, on account of defendant's negligence, suffered a miscarriage and a severely injured ankle which disabled her for a long period of time, was not excessive.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Harrison County; L.C. CORBAN, Judge.
Bidwell Adam and Howard McDonnell, for appellants.
The Court erred in refusing instruction No. 2 requested by appellants: "The Court instructs the jury for the defendants, that if you believe from the evidence that the husband of the plaintiff drove his car in which plaintiff was riding, across the yellow line in the center of the southern section of the Highway after he had passed Gill Avenue and entered into a no-crossing zone, and as a result thereof contributed to the collision of the car and truck, then you shall take into consideration such act on the part of the husband of plaintiff in fixing the responsibility for said collision."
The object of this instruction was to point out to the jury the law with reference to crossing and passing on the south lane of Highway 90 between Gill Avenue and Porter Avenue. N.F. Herring, patrolman, witness for appellee, testified that it was a violation of the law for a car to cross the yellow line between Gill and Porter Avenue. This testimony of appellee's witness has not been contradicted, and as a city patrolman the witness certainly should know the meaning of the traffic signs and street markings. It is also common knowledge of all persons using the highways that these yellow lines down center of highways below hills and before reaching curves and other dangerous places, such as busy intersections, mean that cars in the outside lane should remain there and not cross over into the inside, or left lane, until the yellow line has ended. Hawver admitted he crossed the yellow line between Gill and Porter Avenues and thus violated this safety precaution. Patrolman Herring positively stated the yellow line ran all the way from Gill Avenue east to the east end of the neutral ground. From the testimony above, the jury should have been instructed as to the law of the road at or just prior to the point where the accident occurred. Appellants had directed a large part of their defense to Hawver crossing this yellow line in the middle of the block after following appellants' truck for some distance, and then crossing over without warning or signal and then proceeding beyond the neutral zone after partially overtaking the truck. The driver Watson had no reason to believe another car was to his left, as Hawver could only get in that position by violating the law. Appellants were clearly entitled to the instruction and refusal of the court to grant it was fatal error. A party has right to embody his theory of the case in his instruction if there is testimony to support it and if made conditional upon jury's finding that such facts existed. Code 1942, Sec. 1530; Murphy v. Burney, 27 So. (Miss.) 2d 773.
Had Hawver kept in his proper lane, the south portion of the south lane, there could have been no collision between the vehicles. Appellant's truck had passed the neutral ground and made some turn to the left preparatory to turning left at the intersection. Hawver had no right to be where he was on the highway. His being in the wrong lane was the proximate cause of the accident, or at least the jury might very well have found, had it been properly instructed by the Court.
R.B. Meadows, Jr., and Jo Drake Arrington, for appellee.
Appellants say, "Had Hawver kept in his proper lane, the south portion of the south lane, there could have been no collision between the vehicles", which is about as reasonable as saying that if the appellee had been at home washing dishes and not been riding as a passenger in her husband's automobile she would not have been injured. Hawver, we understand, had a right to make a left turn and go north up Porter Avenue in order to reach his destination, Keesler Field; and under the law, it was his duty to cross from the south lane to the north lane, so that his "approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof", Sec. 8189(b), Code 1942.
The law, as applied to a four lane driver, means that one making a left turn should enter into and be in that lane nearest the center line of the four lane drive, that is to say, Hawver, the appellee's husband, should have done exactly what he did do, namely, leave the south lane and cross over into the north lane, and thereby avoid blocking, interfering, and colliding with other traffic, that intending to go by the intersection, and particularly that intending to make the left turn. The appellant's, Jesse Watson's attempt to make the left turn from the south instead of the north lane, is what caused the collision. He should have entered and been in the north lane before making his left turn.
The case at bar involves a collision which occurred on a four lane drive: both drivers were going easterly, one in the south and one in the north lane; both drivers intended to turn left at Porter Avenue's intersection with Highway 90; the appellants' driver was in the south lane, to the right and some 20 feet ahead of the car in the north lane, and suddenly without looking, and without giving a signal or warning of any kind, made a left turn in front of the car in the north lane, and rendered a collision inevitable.
Under the law, it was the duty of the appellant, Jesse Watson, to enter into the north lane before attempting to make a left turn at Porter Avenue intersection, Section 8189, Code 1942, cited supra, and to have given the signals legally required for a left turn, Sections 8192, 8193, 8194, Code 1942.
In the Collins Baking Company case cited by appellants, the Supreme Court expressly held that "there was no law requiring the driver to give a signal, under the conditions here detailed", and that it was a question for the jury, whether or not the failure to give a signal was negligence.
In the case at bar, the statutory law of this state required appellants' driver to give a signal, Sections 8192, 8193, 8194, cited supra, and see Kullman v. Samuels, 148 Miss. 871, 114 So. 807.
Appellee recovered a judgment for $2,000.00 for personal injuries sustained by her when an automobile in which she was riding, driven by her husband, collided with a motor truck owned by appellant Kouvarakis and being operated at the time by his employee Watson admittedly in furtherance of his master's business.
(Hn 1) Appellants contend first that the trial court erred in refusing to continue the case to a subsequent term for the reason that the members of the regular jury panel for the week were all drawn from three districts of the county and no member of the panel was from either of the other two districts. The record shows that the jury box was exhausted as to two of the districts, leaving only three districts from which the jury could be drawn. If there be any merit in appellants' contention the point should have been raised by a motion to quash, whereupon if such motion were sustained the court could have provided another jury for the week in the manner authorized by law, and a continuance of the case would not have been necessary. We are not to be understood, however, as holding that a motion to quash would have been well taken under the circumstances here disclosed, for by Section 1798 of the Mississippi Code of 1942 it is provided that our jury laws are directory and not mandatory, and in Lott v. State, 204 Miss. 610, 37 So.2d 782, and in the numerous cases therein cited, it was held that a case will not be reversed unless there is a radical departure from the statutory scheme of summoning and impaneling juries.
(Hn 2) The next assignment argued is that the court erred in refusing an instruction to appellants predicated upon the theory that the plaintiff's husband had no right to drive his car in the north lane of the south half of the highway, and the third assignment argued is that the trial court erred in granting an instruction to the appellee upon the facts of the case because appellants contend that appellee's husband was in the wrong lane of traffic at the time of the collision. For an understanding of these points it is necessary to briefly review the facts.
To the west of the light house in Biloxi, Miss., U.S. Highway 90 is a four lane thoroughfare running east and west. There is a neutral ground in the center of the highway. The north half of the highway is divided into two lanes for the accommodation of vehicles traveling to the west; the south half of the highway is also divided into two lanes for the accommodation of vehicles traveling to the east. At the east end of the four lane highway where it narrows down to a two lane highway continuing east, Porter Avenue, running north and south, intersects it. Plaintiff and her husband were traveling east. They desired to turn to the north, or to their left, into Porter Avenue and Mr. Hawver accordingly drove his car into the north lane of the south half of the highway before reaching the intersection and continued east at a speed of about 20 miles per hour. Watson, who was driving the truck, was also proceeding at about the same rate of speed to the east slightly ahead of Hawver, but continued to operate the truck in the south lane of the south half of the highway until he reached the intersection, whereupon he turned sharply to the left and in front of the Hawver automobile, in undertaking to make a left turn into Porter Avenue, and as a result thereof the Hawver car struck the truck about its center. The foregoing facts are not in dispute. Watson testified that he gave a signal for a left turn, and this is denied by both Hawver and his wife. The jury decided that issue in favor of appellee. From this picture of the situation it is at once apparent that Hawver was in the proper lane for a left turn and Watson was in the wrong lane. Section 8189 of the Mississippi Code of 1942 provides ". . . (b) Approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof." The instruction requested by appellants was therefore properly refused, and there is no merit in the criticism which is aimed at appellee's given instruction.
(Hn 3) Appellant Kouvarakis testified in his own behalf and on cross-examination was asked what kind of business he was engaged in operating. He readily admitted, without objection, that he was operating a drive-in restaurant and bar and used eleven employees in the conduct thereof. He was asked if he did not also operate slot machines, to which objection was made and the objection was sustained by the trial court. Thereupon appellants moved the court for a mistrial, which motion was overruled and the action thereon is assigned as error, the appellants contending that the question, though never answered, was highly prejudicial. Upon sustaining the objection the trial court admonished the jury to disregard the question "because it has no bearing on the case". We are of the opinion that no prejudice sufficient to require a mistrial was manifested by the mere asking of the question. The disclosure that appellant was operating a bar in violation of the law of this state did not apparently alarm him to the extent of sensing prejudice therein or prod him into objecting thereto. We do not perceive how a suggestion of slot machines could arouse any greater resentment in the mind of the jury than the frankly admitted operation of a bar, and, while we do not approve the development of the latter fact or the effort to develop the former in the cross-examination, nevertheless we repeat that we do not think there was such prejudice as to justify a reversal of the lower court in refusing a mistrial.
(Hn 4) Up to the time of the trial the appellee had expended approximately $205.00 for medical treatment on account of her injuries. Appellants requested an instruction limiting recovery for medical bills to this amount and its refusal is assigned as error. We find that the action of the trial court was correct because the instruction would have prohibited the jury from taking into consideration any medical expenses which appellee might reasonably be expected to have to pay in the future. Moreover, the damages awarded in this case were not large as will be next noted.
(Hn 5) It is finally contended that the verdict is excessive. Appellee suffered a miscarriage and a severely injured ankle which disabled her for a long period of time, and she was still suffering from the latter injury at the time of the trial. After a careful consideration of the evidence on the question of damages we are of the opinion that the amount awarded is not excessive, and the judgment of the lower court is accordingly affirmed.
Affirmed.