Opinion
No. 43781.
February 7, 1966.
1. Motor vehicles — collision — negligence — proximate cause — excessive speed — lookout — control.
Evidence justified finding that sole, proximate cause of the collision between preceding truck, which was turning left, and overtaking automobile with result that the truck was knocked 40 to 50 feet in 60-mile per hour zone was automobile driver's excessive speed, failure to keep lookout, and failure to keep his automobile under control.
2. Motor vehicles — instructions — yielding right-of-way instruction, not erroneous when considered with other instructions.
Instruction to general effect that following driver must yield right-of-way to preceding driver who has given proper signal to turn left was not erroneous considering other instructions, although the instruction in question could have been drawn more precisely. Secs. 8185, 8192, Code 1942.
3. Evidence — admissibility — implied admission of liability by payment of similar claim — error, if any, harmless under circumstances.
Permitting cross-examination of overtaking driver, who was suing preceding driver for damages as result of collision, as to whether overtaking driver had paid preceding driver's father for damage to the preceding vehicle was not reversible error although overtaking driver stated that he did not pay the damages but that he supposed it was the "Farm Bureau", in view of statement on redirect examination that no judgment had been obtained against overtaking driver.
Headnotes as approved by Ethridge, C.J.
APPEAL from the Circuit Court of Noxubee County; JOHN D. GREENE, JR., J.
W.H. Jolly, Columbus, for appellant.
I. The verdict of the jury was against the weight of the evidence and the law. Frizell v. Guthrie, 222 Miss. 501, 76 So.2d 361; Sohio Petroleum Co. v. Fowler, 231 Miss. 72, 94 So.2d 350; Southern R. Co. v. Floyd, 99 Miss. 519, 55 So. 287; Secs. 1455, 8185(b), 8192(a), Code 1942.
II. The trial court was in error in granting instructions for the defendant. Sohio Petroleum Co. v. Fowler, supra; Sec. 8192(a), Code 1942.
III. The Court was in error in overruling objections of the appellant to evidence brought out by the appellee with reference to settlement of a prior case brought against the appellant by J.J. Pugh, Sr., the father of appellee, and the owner of the vehicle which appellee was driving on the date of the accident. Barber v. Great Southern Development Co., 249 Miss. 662, 163 So.2d 735; 20 Am. Jur., Evidence, Sec. 565 p. 477; Jones, Evidence, Sec. 1052-7; McCormick, Evidence, Secs. 76, 251; Wigmore, Evidence, Secs. 1061, 1062.
Martin Brown, Macon, for appellee.
I. The verdict of the jury was amply supported by the evidence and ought not to be disturbed. Ferguson v. Denton, 239 Miss. 591, 124 So.2d 279; Frizell v. Guthrie, 222 Miss. 501, 76 So.2d 361; Sohio Petroleum Co. v. Fowler, 231 Miss. 72, 94 So.2d 350; Stewart v. Madden, 233 Miss. 206, 101 So.2d 353; Straight v. Brinson, 246 Miss. 132, 124 So.2d 515; Sec. 1455, Code 1942.
II. The trial court committed no error in granting instructions Nos. 7 and 8 for appellee; however, if error was committed, same was cured by other instructions. American Creosote Works v. Rose Brothers, 211 Miss. 173, 51 So.2d 220; City of Meridian v. King, 194 Miss. 162, 11 So.2d 205, 830; Harrington v. Pilkinton, 220 Miss. 784, 71 So.2d 884.
III. The trial court correctly overruled appellant's objection to cross-examination relative to payment of Jack J. Pugh, Sr., for the truck involved in the accident complained of. Barber v. Great Southern Development Co., 249 Miss. 662, 163 So.2d 735; Davis v. Agent's Finance Corp., 249 Miss. 839, 164 So.2d 449; 20 Am. Jur., Evidence, Sec. 566 p. 478; Annos. 80 A.L.R. 923, 161 A.L.R. 395, 20 A.L.R. 2d 304; McCormick, Evidence, Sec. 251 p. 539.
M.M. LeBaugh brought this action in the Circuit Court of Noxubee County against Jack J. Pugh, Jr., appellee, seeking damages for personal injuries and damages to plaintiff's automobile when it collided with defendant's truck. The jury returned a verdict for Pugh, and this appeal is from a judgment based on it.
(Hn 1) There was sufficient evidence for the jury to find that the sole, proximate cause of the accident was the negligence of LeBaugh in driving his automobile at an excessive rate of speed, and failing to keep a lookout and to keep his car under control. LeBaugh's automobile was proceeding south behind Pugh's truck. The latter turned left into a private road leading to a pasture. The rear wheels of the truck were off on the east side of the pavement when LeBaugh's automobile hit them. Plaintiff testified that defendant did not give a left turn signal. Defendant asserted that he did. Before the impact plaintiff's car skidded 62 feet, and after that 45 feet. Apparently plaintiff was trying to pass. The truck was a heavy vehicle, yet plaintiff's car knocked it 40 to 50 feet. Plaintiff testified that he was going 40 miles per hour. A highway patrolman stated that plaintiff said he was traveling 50 to 55 miles per hour in a 60 mile zone. However, the distance of the skid marks, and the length the truck was knocked by the lighter automobile would justify a jury finding of excessive speed under all of the circumstances.
(Hn 2) Pugh obtained an instruction to the general effect that the driver of a following automobile must yield the right of way to the leading automobile traveling in the same direction after the driver of the latter gives the proper signal to turn left, etc. Although this instruction could have been drawn more precisely, when it is read along with instructions numbers 2 and 3 given plaintiff, there was no error. Cf. Miss. Code Ann. §§ 8185, 8192 (1956). Sohio Petroleum Co. v. Fowler, 231 Miss. 72, 94 So.2d 350 (1957), and Frizzell v. Guthrie, 222 Miss. 501, 76 So.2d 361 (1954), dealt with different circumstances, including different jury verdicts on the original hearings, and do not control.
(Hn 3) The defendant, Pugh, Jr., was driving his father's truck. There was no reversible error in permitting defendant's counsel to cross-examine LeBaugh as to whether he had paid Pugh, Sr., for damages to his truck. LeBaugh stated that he did not pay the damages, but he supposed it was the "Farm Bureau." On redirect, LeBaugh said that no judgment was ever obtained against him by Pugh, Sr. Under the circumstances, we do not have to determine here whether a payment made by the present plaintiff was privileged when offered as an implied admission of liability. See McCormick, Evidence § 251 at 541 (1954); Annot., 20 A.L.R. 2d 304 (1951). Plaintiff denied that any judgment was obtained against him and denied that he paid Pugh, Sr. Hence the error in the admission of this evidence, if any, was harmless.
Affirmed.
Gillespie, Rodgers, Jones and Robertson, JJ., concur.