Opinion
No. 40378.
February 4, 1957.
1. Motor vehicles — intersectional collision — injury to guest — negligence — defendants' instruction — reversible error.
In suit for injuries sustained by automobile guest in collision with defendants' station wagon at highway intersection, where driver of automobile and guest testified that before attempting to cross through highway at intersection, they had looked both to the left and right, instruction to jury that driver was negligent in entering intersection without looking to his left and directing jury to find for defendants if such negligence was sole proximate cause of injuries sustained by guest in collision with defendants' station wagon, constituted reversible error. Sec. 8197, Code 1942.
2. Motor vehicles — intersectional collision — negligence — plaintiff's instruction — properly refused.
Instruction, requested by plaintiff, stating peremptorily that there was ample room to turn station wagon to right and avoid collision was properly refused, in view of evidence that a truck had stopped at side of highway and that there was not enough room to pass without striking truck.
3. Motor vehicles — intersectional collision — negligence — instructions — plaintiff's ineptly drawn instruction — properly refused.
Ineptly drawn instruction, requested by plaintiff, which peremptorily charged that injury was proximately caused by driving station wagon to the left of center of highway was properly refused, in view of evidence that station wagon was on right side of highway at time of collision.
Headnotes as approved by Lee, J.
APPEAL from the Circuit Court of Jasper County; HOMER CURRIE, Judge.
J.M. Travis, Heidelberg, for appellant.
I. The Court erred in granting to defendants the following instructions, to-wit:
"1. The Court instructs the jury for the defendant that Mr. Howell, the driver of the car in which the plaintiff was riding was guilty of negligence in driving his car into the intersection of the Vossburg-Eucutta Road and Highway Number 11 without looking to his left or towards the North immediately before doing so; and if you believe from the evidence that such negligence was the sole proximate cause of the collision and the injuries to the plaintiff, you shall find for the defendants straightout.
"2. The Court instructs the jury for the defendant that if you believe from the evidence that the collision in question was caused solely by the negligence and carelessness of Mr. Howell, then it will be your duty to find for the defendants.
"3. The Court instructs the jury for the defendants that it was the duty of Mr. Howell as he drove his car in an easterly direction on the Vossburg-Eucutta Road to keep a vigilant outlook ahead and to the sides and to anticipate the presence of other vehicles and persons in the intersection with Highway No. 11, to keep the car under constant and easy control with the ability to slow down or stop readily and easy, to obey the stop sign on the west side of that intersection by bringing his car to a full stop before entering the intersection, and not to enter the intersection with Highway No. 11, when the car occupied by the defendants was approaching that intersection on Highway No. 11, so closely as to constitute an immediate hazard. Failure in any one of the respects stated would be negligence on the part of Mr. Howell, and if you believe from the evidence that such negligence, if any, was the sole proximate cause of the collision and the injuries complained of it will be your duty to find for the defendants.
"4. The Court instructs the jury for the defendants that it was the duty of Mr. Howell, driving his car in an easterly direction on the Vossburg-Eucutta Road to be alert for other vehicles on Highway No. 11, approaching that intersection; that when he approached the intersection, whether he stopped or not, he was bound to anticipate and to expect the presence of other vehicles which might also be approaching the intersection, that he had no lawful right to go forward and enter and attempt to cross the intersection under the assumption that it would be open and clear; that he is presumed to have seen what he should have seen; and if you believe from the evidence that the car occupied by the defendants as it approached the intersection was visible to Mr. Howell or should have been seen by him in the exercise of reasonable diligence, and that the sole proximate cause of the accident and injuries to the plaintiff was the failure of Mr. Howell to exercise reasonable diligence and caution before entering the intersection, it will be your duty to find for the defendants.
"5. The Court instructs the jury for the defendants that it was the duty of Mr. Howell, driving his car in an easterly direction on the Vossburg-Eucutta Road to stop in obedience to the stop sign on the west side of the intersection with Highway No. 11. It was then his duty to look for other cars traveling on Highway No. 11 and not to enter the intersection if another car traveling on Highway No. 11 was approaching the intersection so closely as to create an immediate hazard. If the car occupied by the defendants traveling on Highway No. 11 was approaching that intersection so closely as to create an immediate hazard, it was the duty of Mr. Howell to yield the intersection to that car on Highway No. 11. Failure in any of these regards stated would be negligence on the part of Mr. Howell and if you believe from the evidence that such negligence if any was the sole proximate cause of the collision and injuries to the plaintiff, it will be your duty to find for the defendants.
"6. The Court instructs the jury for the defendants that if you believe from the evidence that Mr. Howell, driving his car in an easterly direction on the Vossburg-Eucutta Road, stopped before entering the intersection with Highway No. 11, it was his duty not to start off again and enter the intersection until he could do so with reasonable safety, and if you believe from the evidence that he did start off again and enter the intersectian at a time and under such circumstances that he could not do so with reasonable safety, Mr. Howell was guilty of negligence, and if you believe from the evidence that such negligence, if any, was the sole proximate cause of the injuries to the plaintiff, it will be your duty to find for the defendants.
"7. The Court instructs the jury for the defendants that even if you believe that Mr. Howell, driving his car in an easterly direction on the Vossburg-Eucutta Road stopped before entering the intersection with Highway No. 11 and looked in the direction in which the defendant's car was approaching without observing its presence, he was not relieved of his duty to continue to look up and down Highway No. 11 for approaching vehicles before entering the intersection, even though Mr. Howell's car may have reached the intersection first and before the car occupied by the defendants entered it; and if you believe from the evidence that at the time Mr. Howell drove his car into the intersection, the car occupied by the defendants was approaching the intersection so closely as to create and constitute an immediate hazard and that the sole proximate cause of the collision and the injury to the plaintiff was the failure of Mr. Howell to keep a vigilant lookout as to where he was going or the failure of Mr. Howell to have his car under such control as to have the ability to stop readily and easily, it will be your duty to find for the defendants."
II. The instructions should inform the jury as to the law of the case applicable to the facts in such a manner that they may not be misled. 53 Am. Jur., Sec. 509.
III. The Trial Court in charging the jury should never either of its own motion or at the request of either party, give an instruction to the jury which assumes as true, the existence or non-existence of any material fact in issue in respect of which the evidence is conflicting or in which there is dispute, or which is not supported by the evidence. Such an instruction invades the province of the jury, since it is the only tribunal to pass on controverted facts in courts of law and until the verdict is rendered no such fact is established or shown to exist. Of the right of a court to speak of facts as established in charging the jury, it has been said that it must stop where in any reasonable view of the evidence, there is room for debate as to where the truth lies. 53 Am. Jur., Sec. 605 p. 478.
IV. The Court may not instruct upon the weight of the evidence. Alexander's Miss. Jury Instructions, Sec. 9 p. 8.
V. Instructions assuming a matter in issue is erroneous. Dixie Stock Yard, Inc. v. Ferguson, 192 Miss. 166, 4 So.2d 724; French v. Sales, 63 Miss. 386; Griffin v. Griffin, 93 Miss. 651, 46 So. 945.
VI. Conflicting and inconsistent instructions. Illinois Cent. RR. Co. v. McGowan, 92 Miss. 603, 46 So. 55; McNeil v. Bay Springs Bank, 100 Miss. 271, 56 So. 333.
VII. Instructions commenting on the evidence in a case constitute error. D'Antoni v. Teche Lines, 163 Miss. 668, 143 So. 414.
VIII. An instruction on weight of evidence is forbidden. Alabama V. Ry. Co. v. Phillips, 70 Miss. 14, 11 So. 602; Griffin v. Griffin, supra; Hooks v. Mills, 101 Miss. 91, 57 So. 545; Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830; Louisville N.O. T. Ry. Co. v. Whitehead, 71 Miss. 451, 15 So. 890; Potera v. Brookhaven, 95 Miss. 774, 49 So. 617.
IX. The Court erred in refusing to the plaintiff the following instructions:
"1. The Court charges the jury for the plaintiff that if you believe from a preponderance of the testimony and evidence in this case that under all of the surrounding facts and evidence in this case, that the said Herman Guy, while driving his car, could have turned his car to the right of the car of the said W.P. Howell and prevented the accident, there being ample room on the said highway for this to have been done, and that the said Herman Guy could have turned his car to the right and avoided the accident in question, then it shall be your duty to find for the plaintiff in this case.
"2. The Court charges the jury for the plaintiff, that if you believe from a preponderance of the testimony and evidence in this case that Herman Guy was driving the automobile of the defendant in a negligent and careless manner on the highway at the time of the collision between the car of Herman Guy Auto Parts, Inc. and W.P. Howell; and that at the time of collision the said Herman Guy struck the car of W.P. Howell while driving his car on the left hand side of the center of Highway 11 which proximately caused the injury to the plaintiff, then it shall be your duty to find for the plaintiff in this case."
Snow Covington, Meridian, for appellee.
I. There was no error in the Trial Court's giving the instructions to the defendant complained of, or in its refusal to grant the plaintiff the two instructions complained about. All of the instructions, when taken together as a whole, correctly informed the jury as to the law of the case. Byram v. Snowden, 224 Miss. 74, 70 So.2d 541; Robinson v. Colotta, 199 Miss. 800, 26 So.2d 66; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Vann v. Tankersly, 164 Miss. 748, 145 So. 642; White v. Weitz, 169 Miss. 102, 152 So. 484.
This is a suit by S.E. Moore against Herman Guy Auto Parts, Inc., and another to recover damages for personal injuries. There was a jury verdict for the defendant; and from the judgment entered, Moore appealed.
The basic issue, under the pleadings and the evidence, was whether the automobile, in which Moore was riding, had the right of way in the intersection, or whether the automobile of Guy, approaching on a through highway, was so close to the intersection as to constitute an immediate hazard and thus denied Moore's right, under Section 8197, Code of 1942, to entry at that time.
The lawsuit was the outgrowth of a collision between two automobiles in the intersection of the Vossburg-Eucutta Road and U.S. Highway No. 11. At this point the highway runs in a general north and south course and the road follows an east and west course. The Pontiac automobile, driven by its owner, W.P. Howell, and in which Moore was riding as a guest, traveling east on the road, approached the intersection. At the time of the collision, Herman Guy, agent of the corporate-defendant, driving a Mercury station wagon, was proceeding south on the highway.
Both Howell and Moore testified that, as they approached the highway, they stopped at the stop sign about 10 or 12 feet west of the highway. They looked to the north up No. 11 to the crest of the hill, and it was clear. They then looked south down No. 11, and it was clear except for two freight trucks, which were just in sight. Howell remarked that the road was clear both ways, and Moore sanctioned the statement with the comment "you have got plenty time to cross". Howell then started slowly into and across the intersection. When he had covered two-thirds to three-fourths of the distance, suddenly the Mercury's right front bumper hit the Pontiac's left rear wheel, just east of the center line of the highway, thereby causing Moore's injury. During cross examination, Moore said he knew that Guy "had to be running around 70 miles an hour". A highway patrolman testified that it is 1056 feet from the center of the intersection north to the crest of the hill on No. 11.
Guy and his companion, A.H. Hall, testified that they approached the intersection at a speed of about 35 miles an hour. Hall said that, when they were within 150 feet of it, he saw the Pontiac car stop at the stop sign. A highway truck, which had stopped on the side, then obscured the Pontiac from view. He next saw the car going into the highway in front of them when they were abreast of the truck and only about 30 feet from the intersection. Guy said that he did not see the car, as they were going down the hill, because it was behind the truck; and that when he got about even with the truck, the Pontiac shot out in front of him only 25 or 30 feet away. He said that he could not cut to the right because he would have hit the truck; and that he applied his brakes and did every thing that he could to avoid the collision. He further testified that he was in his own lane at the time of the impact.
Thus according to the evidence for the plaintiff, Howell, before entering the intersection, stopped his car, as contemplated by Section 8197, Code of 1942. When the way appeared to be clear, he undertook to pass over and was struck after he had covered two-thirds to three-fourths of the distance. If this evidence was true, it would be logically inferred that the Mercury was running so fast that it came over the crest of the hill and arrived at the intersection before the plaintiff could look south, start up his car, and make the crossing.
While, under the defendants' version, it was admitted that the Pontiac stopped at the sign, it was said that the driver started up and suddenly entered the intersection only 25 or 30 feet in front of them at a time when they could do nothing to avoid the collision.
(Hn 1) In spite of this sharply disputed issue of fact, the court gave the defendants the following instruction: "The court instructs the jury for the defendant that Mr. Howell, the driver of the car in which the plaintiff was riding, was guilty of negligence in driving his car into the intersection of the Vossburg-Eucutta road and Highway Number 11 without looking to his left or towards the north immediately before doing so; and if you believe from the evidence that such negligence was the sole proximate cause of the collision and the injuries to the plaintiff, you shall find for the defendants straightout."
In other words, the court thus told the jury that Howell did not look to the north immediately before entering the intersection, and that this was negligence. The instruction ignored the evidence of both Howell and Moore who testified that they looked first to the north and then to the south and that the way was clear when they started into the intersection.
Appellees cite Ulmer v. Pistole, 115 Miss. 485, 76 So. 522, and Robinson v. Colotta, 199 Miss. 800, 26 So.2d 66, as authority for giving this instruction. But in the first case, the appellant there was looking only to his right and not to his left, from the direction that the buggy came. The Court said that his failure to look in both directions was negligence. But in the case now before this Court both Howell and Moore, if the jury believed their evidence, looked in both directions. In the latter cited case, the Court refused to give an instruction to the effect that the driver of the truck was negligent in cutting the intersection of Nelson and Hinds Streets and in failing to be on the lookout in entering the intersection. This refusal was held to be error because the driver admitted that he cut the corner, and he was therefore on the wrong side of the middle of the intersection. The instruction in the present case was erroneous and should not have been given.
(Hn 2) The appellant also complains that the court erred in refusing to give two instructions requested by him. The first undertook to announce the duty of Guy to turn to his right and avoid the collision; and the other, to proclaim his liability, if the collision occurred east of the center line of the highway. There was some evidence for the plaintiff to justify the announcement of these principles. But of course the instructions had to do so correctly. The vice of the first instruction was that it stated peremptorily that there was ample room to pass — "there being ample room on the said highway for this to have been done". Both Guy and Hall had testified that there was not enough room and that they would have run into the highway truck, if they had cut to the right. (Hn 3) The other instruction was ineptly drawn and besides peremptorily charged that Guy's driving on the left side (which was denied) proximately caused the injury to the plaintiff. For the reasons stated, these instructions were properly refused.
Appellant complains too of errors in several other instructions which were given for the defendants. An examination of these instructions fails to disclose any substantial error therein.
For the error of the court in giving the above quoted instruction, the cause is reversed and remanded for a new trial.
Reversed and remanded.
Roberds, P.J., and Hall, Holmes and Ethridge, JJ., concur.