Summary
In Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487, we held that an unjust appraisal of the degree to which a plaintiff's negligence contributed to the injury may in a proper case be a basis for reversal. It is clear that where there is no showing of contributory negligence, the question of the existence of passion or prejudice must be resolved by contrasting the uncontradicted showing of the entire damage with the amount of the verdict.
Summary of this case from Dixon v. BrelandOpinion
No. 34527.
April 14, 1941. Suggestion of Error Overruled, May 12, 1941.
1. APPEAL AND ERROR.
Where appeal was taken from adverse ruling on plaintiff's motion to set aside verdict for inadequacy and to grant new trial as to damages only, and there was no cross-appeal, question presented was whether under the facts and in view of instruction under comparative negligence statute, verdict was so inadequate as to evince prejudice justifying reversal (Code 1930, sec. 511).
2. NEGLIGENCE.
Where automobile ran out of gasoline, and motorist with aid of fellow passengers was attempting to push automobile toward shoulder of highway when the automobile was struck by an overtaking automobile, any contributory negligence attributable to motorist would not warrant limiting his recovery to only $100 for personal injuries consisting of compound fracture of the right leg, and bruises and cuts on left leg requiring confinement in bed for a total of six weeks and for property damage to automobile totaling $172.45 (Code 1930, sec. 511).
3. AUTOMOBILES.
Motorist whose headlights threw a beam 500 feet but who did not see preceding automobile which was being pushed off highway until he was within 30 feet thereof was presumed to have seen what he should have seen (Code 1930, sec. 511).
APPEAL from the circuit court of Coahoma county, HON. WM. A. ALCORN, JR., Judge.
Roberson Luckett, of Clarksdale, for appellant.
The supervisory power of this court over jury verdicts is not limited to those cases wherein the defendant alone is negligent. It exists also in those cases wherein both the party plaintiff and the party defendant are negligent, and the jury is required by the instructions of the court to diminish the damages suffered by plaintiff in proportion to the amount of negligence attributable to him.
Beard v. Williams, 161 So. 750, 172 Miss. 880; G. S.I.R. Co. v. Bond et al., 179 So. 355, 181 Miss. 254; Y. M.V.R. Co. v. Williams, 74 So. 835, 114 Miss. 236; Bruce v. Bramlett, 188 So. 532.
Appellee was guilty of gross negligence.
Code of 1930, Sec. 5569; Frazier v. Hull, 157 Miss. 303, 127 So. 775; Hemingway's 1917 Code, Sec. 5775; Laws of 1916, Chap. 116; Laws of 1938, Chap. 200; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Terry v. Smylie, 161 Miss. 31, 133 So. 662; Ulmer v. Pistole, 76 So. 522, 115 Miss. 485; Whitley v. Holmes, 164 Miss. 423, 144 So. 48.
Appellant, if guilty of any negligence, was guilty of simple negligence.
20 Am. Jur., Sec. 804; Laws of 1938, Chap. 200.
The jury's award is inadequate.
Ames v. Armour Co., 257 Ill. App. 449; Armour Co. v. McMillan, 155 So. 218, 171 Miss. 199; Bedell v. Mandel, 155 A. 383, 108 N.J.L. 22; Beard v. Williams, 161 So. 750, 172 Miss. 880; 10 Blashfield's Cyc. of Automobile Law and Practice, p. 121; Bruce v. Krysiak, 151 A. 79, 8 N.J. Misc. 536; Bufkin v. Gresham, 128 So. 563, 157 Miss. 746; Gates v. Plummer, 291 S.W. 816, 173 Ark. 27; Gruenewald v. Kaysing Iron Works, 5 S.W.2d 709; Gwin v. Carter, 129 So. 597, 158 Miss. 196; Hamlin v. N.H. Bragg Sons, 151 A. 197, 129 Me. 154; Harju v. Market St. Ry. Co., 299 P. 788, 114 Cal.App. 138; Henderson v. Abbotts Alderney Dairies, 156 A. 20, 9 N.J. Misc. 802; Hines v. Parsons, 221 S.W. 1027; Hoelker v. Am. Press, 296 S.W. 1008, 317 Mo. 64; Hunsavage v. Rocek, 219 P. 1080, 74 Colo. 163; Lang Floral Nursery Co. v. Sheridan, 245 S.W. 467; Leonardt v. Green, 96 A. 1096, 251 Pa. 579; Magee v. Vaughan (Pa.), 212 F. 278, rev. 218 F. 630, 134 C.C.A. 388; McDougal v. Bornmann, 234 N.W. 807, 211 Iowa 950; Meridian Coca Cola Bottling Co. v. Illges, 191 So. 817, 187 Miss. 27; Morris v. Standard Oil Co., 219 P. 998, 192 Cal. 343, 30 A.L.R. 1103; Mulvaney v. Knight Const. Co., 159 A. 533, 10 N.J. Misc. 439; Murray v. Cohen, 132 A. 221, 4 N.J. Misc 139; Peterson v. Eighmie, 158 N.Y.S. 202, 94 Misc. Rep. 706, rev. 161 N.Y.S. 1065, 175 App. Div. 113; Pruett v. Brantley, 127 So. 2, 13 La. App. 208; Schneider v. Rolf, 278 S.W. 100, 211 Ky. 669; Selaster v. Simmons, 7 P.2d 258, 39 Ariz. 432; Standard Oil Co. of Ky. v. Evans, 122 So. 735, 154 Miss. 475; Steinbrun v. Smith, 11 P.2d 868, 123 Cal.App. 697; Stewart v. Jewett, 166 A. 54, 132 Me. 71; Stuckenmeyer v. Creane, 291 S.W. 145; Tilley v. Johnson, 153 A. 180, 130 Me. 18; Tsuruoka v. Lukens, 32 Haw. 263; Warput v. Reading Coal Co., 250 Ill. App. 450; Woodruff v. Ewald, 230 P. 149, 131 Wn. 285; Wulze v. Aquardo, 6 S.W.2d 1017; Youtsey v. Chicago, R.I. P. Ry. Co., 251 S.W. 468, aff., 259 S.W. 771.
This cause should be reversed for trial on question of damages only.
Faulkner v. Middleton, 188 So. 565, 186 Miss. 355.
Brewer Sisson, of Clarksdale, for appellee.
Appellant was grossly negligent.
Laws of 1938, Chap. 200, Sec. 90.
Verdict was not so inadequate as to justify a new trial.
Chapman v. Powers, 150 Miss. 687, 693, 116 So. 609; City of Lumberton v. Schrader, 176 Miss. 272, 282, 168 So. 77; Code of 1930, Sec. 511; Goodman v. Lang, 158 Miss. 204, 208, 130 So. 50; G. S.I.R. Co. v. Bond, 181 Miss. 254, 276, 179 So. 355; J.C. Penney Co. v. Evans, 172 Miss. 900, 907, 160 So. 779, 781; Pounders v. Day, 151 Miss. 436, 441, 118 So. 298.
The facts clearly show, and the jury so found, that appellant was guilty of negligence, if not gross negligence, and properly diminished the damages. This is not a case for reversal on the ground of inadequacy of damages.
Argued orally by Semmes Luckett, for appellant, and by Charles A. Sisson, for appellee.
Plaintiff recovered judgment against defendant for damages to himself and his automobile, which were sustained when struck by defendant's car upon the highway. A peremptory instruction was granted in favor of the plaintiff as to the defendant's liability. The jury returned a verdict allowing damages in the sum of one hundred dollars. Plaintiff made a motion to set such verdict aside and grant a new trial as to damages only. From an adverse ruling thereon plaintiff appeals. There is no cross-appeal. The question presented, therefore, is whether, under the facts and in view of an instruction under our comparative negligence statute (Code 1930, Sec. 511) the verdict is so inadequate as to evince prejudice justifying reversal.
Plaintiff was driving south along concrete highway number 61, about eight miles north of the city of Clarksdale, when his car ran out of gasoline and stopped. With the aid of fellow passengers he sought to push the car toward the shoulder on the right of the highway. There was some testimony that the car was being pushed farther down the highway. While so employed defendant, proceeding along the same highway and in the same direction, crashed into the plaintiff's car from the rear, practically demolishing it, and causing serious injury to plaintiff. It was about eight o'clock in the evening in May, 1940. The rear lights on plaintiff's car were burning. The lights on defendant's car had a usable range of between five and six hundred feet. Defendant testified that he did not see plaintiff's car until he was within about twenty-five or thirty feet, due, it is contended, to the glare from the lights of an approaching car. Defendant's car traveled about one hundred yards after the collision.
Without detailing further facts relative to liability of defendant which is readily apparent, we will examine the extent of plaintiff's damage. He suffered a compound fracture of the right leg, the bone protruding through the flesh. The left leg was cut and bruised, requiring fifteen stitches or sutures. His car was damaged to the extent of $172.45. There was loss of time and a doctor's bill of $25. He was compelled to remain in bed with his leg in a cast for about a month, and for two weeks additional after the cast was removed. He was incapacitated for over seventeen weeks.
When the extent of the injury, with the resultant pain and suffering, is considered and the property damage and other losses are computed conservatively by any standard, it must necessarily and fairly total an amount, as to which an award of only one hundred dollars would be grossly disproportionate to any contributory negligence attributable to the plaintiff.
Defendant cites the case of Chapman v. Powers, 150 Miss. 687, 116 So. 609. Yet this case itself discloses an injury suffered when plaintiff's husband negligently drove into an obstruction on the highway which the exercise of reasonable care and prudence would have avoided. This Court took no pains to conceal its view that the greater negligence was that of the plaintiff. The analogy which is here applicable is not to the liability of the plaintiff Lee, but to the defendant who negligently failed to keep his car under proper control, and ran into plaintiff's car. Regardless of the degrees of negligence properly attributable to the respective parties, we have no hesitancy in declaring the verdict to be so grossly inadequate as to evince prejudice; and if not the result of prejudice, it is due to an inadequate estimate of the total injuries suffered, or to an unjust appraisal of the degree to which the plaintiff's negligence, if any, contributed to such injuries. Appellee's contention is that appellant was not diligent in removing his car, and that appellant wasted his time. This may be a fact issue. However, it is clearer that since appellee was presumed to have seen what he should have seen (Graves v. Johnson, 179 Miss. 465, 176 So. 256), and since his headlights threw a beam five hundred feet and he did not see appellant until within thirty feet, appellee must have wasted both light and space.
Reversed and remanded for hearing as to damages only.