Opinion
No. 41599.
December 12, 1960.
1. Appeal — motor vehicles — intersectional collision — damages — grossly inadequate.
In action by automobile passenger against host motorist and operator of other automobile wherein jury returned verdict for passenger against host motorist for $1,500 and found for operator of other vehicle, under record in case, verdict was so grossly inadequate, cause would be reversed and a new trial awarded to passenger against host on issue of damages only.
Headnote as approved by McGehee, C.J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, Judge.
Crisler, Crisler Bowling, Jackson; Crawley Ford, Kosciusko, for appellant.
I. The Court erred in overruling the motion of the plaintiff for a new trial on the ground that the verdict of the jury and the judgment for the defendant, Mrs. Jeanine Stone, are contrary to the overwhelming weight of the evidence, manifest bias, passion or prejudice on the part of the jury and did not respond to reason. Beard v. Williams, 172 Miss. 880, 161 So. 750; Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Brewer v. Anderson, 227 Miss. 330, 86 So.2d 365; Dame v. Estes, 233 Miss. 315, 101 So.2d 644; Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; Moak v. Black, 230 Miss. 337, 92 So.2d 845; Moore v. Abdalla, 197 Miss. 125, 19 So.2d 502; Myers v. Tims, 161 Miss. 872, 138 So. 578; Universal Truck Loading Co. v. Taylor, 178 Miss. 143, 172 So. 756; Williams v. Hood (Miss.), 114 So.2d 854; Sec. 8176, Code 1942; Sec. 1682, Jackson City Ordinances.
II. The Court erred in granting Instruction No. 4 and Instruction No. 5 for the defendant, Mrs. Jeanine Stone, which are as follows: Instruction No. 4 — "The Court instructs the jury for the defendant, Mrs. Jeanine Stone, that the defendant, Mrs. Mantile S. Murray, was guilty of negligence in failing to stop in response to the stop sign at the intersection, and if you believe from a preponderance of the evidence that the negligence of Mrs. Mantile S. Murray in failing to stop in response to said stop sign was the sole proximate cause of the collision and the injuries to the plaintiff, then you must return a verdict for the defendant, Mrs. Jeanine Stone." Instruction No. 5 — "The Court instructs the jury for the defendant, Mrs. Jeanine Stone, that there are two defendants in this suit, Mrs. Mantile S. Murray and Mrs. Jeanine Stone, and that you are not bound to return a verdict against both of them, but that you are free to return a verdict for Mrs. Jeanine Stone if you find from a preponderance of the evidence that Mrs. Jeanine Stone was not guilty of any negligence which proximately contributed to the accident." Dame v. Estes, supra; Moore v. Abdalla, supra; Myers v. Tims, supra.
III. The Court erred in overruling the motion of the plaintiff for a new trial on the ground that the damages awarded by the jury to the plaintiff and against the defendant, Mrs. Mantile S. Murray, are so grossly inadequate as to indicate bias, passion and prejudice on the part of the jury. Boroughs v. Oliver, 226 Miss. 609, 85 So.2d 191; Bush v. Watkins, 224 Miss. 238, 80 So.2d 19; Chapman v. Powers, 150 Miss. 687, 116 So. 609; Flournoy v. Brown, 200 Miss. 171, 26 So.2d 351; Moseley v. Jamison, 68 Miss. 336, 8 So. 744; Scovel v. City of Pascagoula, 233 Miss. 198, 101 So.2d 537; Sohio Petroleum Co. v. Fowler, 231 Miss. 72, 94 So.2d 350; Vaughan v. Bollis, 221 Miss. 589, 73 So.2d 160; The William Branfoot, 48 Fed. 914; Belli Seminar (1958), Trial and Tort Trends, p. xx.
Heidelberg, Woodliff, Castle Franks, Jackson, for appellee, Mrs. Jeanine Stone.
I. The verdict and judgment being entirely consonant with the overwhelming weight of the evidence, the Court did not err in overruling plaintiff's motion for a new trial.
A. A jury verdict should never be set aside unless it is manifestly against the overwhelming weight of the evidence. Davis v. Temple, 129 Miss. 6, 91 So. 689; Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; Mobile O.R. Co. v. Cox, 153 Miss. 597, 121 So. 292; Shelton v. Underwood, 174 Miss. 169, 163 So. 828.
B. The verdict of the jury in favor of the appellee, Mrs. Stone, was not against the overwhelming weight of the evidence but was a fair and reasonable verdict. Dame v. Estes, 233 Miss. 315, 101 So.2d 644; Gough v. Harrington, 163 Miss. 393, 141 So. 280; Moore v. Abdalla, 197 Miss. 125, 19 So.2d 502; Myers v. Tims, 161 Miss. 872, 138 So. 578; Shelton v. Underwood, supra; Walton v. Owens, 224 F.2d 383; White v. Weitz, 169 Miss. 102, 152 So. 484; Williams v. Hood, 237 Miss. 355, 114 So.2d 854; Secs. 8176, 8197, Code 1942; Pollock on Torts (11th ed.) p. 455.
II. Instruction No. 4 and Instruction No. 5 for the appellee, Mrs. Stone, contained no error. E.I. DuPont De Nemours Co. v. Ladner, 221 Miss. 378, 73 So.2d 249; Sec. 8213, Code 1942; 65 C.J.S., Sec. 264d p. 1191.
III. Appellant was not entitled to a new trial in that the damages awarded her were not so grossly inadequate as to indicate bias, passion or prejudice on the part of the jury. Blanton v. Tri-State Transit Co. of La., Inc., 194 Miss. 393, 12 So.2d 429; McMahan v. Herring, 236 Miss. 442, 110 So.2d 617; Rasberry v. Calhoun County, 230 Miss. 858, 94 So.2d 612; Sullivan v. Gulf S.I.R. Co., 131 Miss. 136, 95 So. 306.
Butler, Snow, O'Mara, Stevens Cannada, Jackson, for appellee, Mrs. Mantile S. Murray.
I. The assessment of the amount of damages sustained by appellant is the duty of the jury, and in this case this matter was properly submitted to and properly determined by the jury. Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628; Kincade Lofton v. Stephens (Miss.), 50 So.2d 587; McDonald v. Moore, 159 Miss. 326, 131 So. 824; Moseley v. Jamison, 68 Miss. 336, 8 So. 744; Rasberry v. Calhoun County, 230 Miss. 858, 94 So.2d 612; Reed v. Eubanks, 232 Miss. 27, 98 So.2d 132; Scovel v. City of Pascagoula, 233 Miss. 198, 101 So.2d 537; Sohio Petroleum Co. v. Fowler, 231 Miss. 72, 94 So.2d 350.
This suit was brought by Mrs. Lula Murray against Mrs. Mantile S. Murray and Mrs. Jeanine Stone for the recovery of damages for a personal injury sustained by Mrs. Lula Murray in an automobile collision in the City of Jackson, Mississippi. The record shows that Jayne Avenue runs east and west and to a motorist the view of the street is unobstructed from a point 150 feet south of Claiborne Street to 150 feet west of Jayne Avenue. There is a stop sign on the southwest corner of Jayne and Claiborne visible from 200 to 250 feet. The City ordinance appearing in the record shows that all streets designated as a right-of-way street by signs at the intersection are in fact right-of-way streets, and requires any vehicle traveling thereon shall be brought to a full stop at the place where such street meets the prolongation of the nearest property line of such through street, subject to the direction of any traffic control sign or signal or any police officer at such intersection. The accident here in question was in a residence district and the city ordinance provides for a speed limit of 30 miles per hour therein.
Mrs. Jeanine Stone testified as an adverse witness and said that she now lives in Kosciusko but formerly lived in Jackson. She said that the street was wet and she was traveling north on Claiborne and that Mrs. Lula Murray was traveling east on Jayne, and that about 100 feet before she got to the intersection she saw the other car and that she was looking out for cars as she drove along, and she looked to the left and saw the Murray vehicle about 100 to 150 feet away and was driving then at about 12 miles per hour. She said that she did not stop or blow her horn, but could have stopped. She admitted that she knew Claiborne was a through street and knew there was a stop sign there and she said that the front of her car was ready to go into the intersection and she does not know where the Murray car was, except that it was back on Jayne Avenue. She said that she put on her brakes but it was too late and that the Murray car ran into her, and struck her car on the left front fender and wound up about 15 feet up on Claiborne Street north of the intersection, and her car finally ended up about 10 feet to the east.
Mrs. Mantile Murray testified as an adverse witness and she said that she is a daughter-in-law of Mrs. Lula Murray, being married to her son Harold. She said that Mrs. Lula Murray was riding in the car with her and she asked her to go to the grocery store with her. She admitted that she did not see the stop sign and said that she did not see Mrs. Stone and did not look in her direction and drove on through the intersection without stopping.
Mrs. Lula Murray testified that she is 60 years of age and has 10 children, all living, she having been married on December 5, 1915. She said that on May 10, 1958, she was not living with her husband but was visiting with her son Harold Murray and his wife Mantile S. Murray, and on that day she went with Mrs. Mantile Murray to the grocery store and then started home. She said it was raining and she glanced up and saw a car going north on Claiborne. After the collision an ambulance came and carried her away. Later she went to Kosciusko, riding on the back seat in a car with her daughter, where she was put by her son and a friend of his. At Kosciusko she was attended by Dr. Paul Mink, who rushed her to the hospital and X-rayed her leg. She said that the cars hit in the middle of the intersection. Her hospital bill was $97.75, in addition to which she had to purchase new glasses, the old ones being broken, and also she expended $23.75 for drugs as well as a $4.00 ambulance fee.
Mrs. Katherine Ramage, a daughter of Mrs. Murray who lives in Kosciusko, testified that her mother was in bad shape and she went into a rather full description of the injuries which her mother sustained requiring her to be in the hospital about 10 days.
Mr. L.P. Different of Jackson testified that he was a patrolman with the Jackson Police Department and investigates accidents. He went to the scene about 5:30 P.M. on the day in question and said that the street was wet but he found debris and the two automobiles. Mrs. Mantile Murray's car was about 55 feet north of the intersection with the front end against a tree on the east side of Claiborne Street and Mrs. Stone's automobile was on the east side of Claiborne and the north side of Jayne, and that broken glass from the headlights was in the street near the center of the intersection. He said that a stop sign at the street required traffic on Jayne to stop before entering Claiborne, and that Mrs. Mantile Murray said that she did not see the stop sign. Mr. Different said that Mrs. Mantile Murray and Mrs. Lula Murray were both injured.
The jury return a verdict in the sum of $1,500 for the plaintiff against Mrs. Mantile Murray and for the defendant Mrs. Jeanine Stone, and judgment was entered accordingly. A motion for a new trial was filed, raising the question that the verdict was contrary to the overwhelming weight of the evidence and manifests passion, prejudice and bias on the part of the jury, and that the damages awarded to the plaintiff are so grossly inadequate under all pertinent testimony as to indicate bias and prejudice on the part of the jury. The motion was overruled by the court and hence this appeal.
Dr. Paul E. Mink testified that on May 19, 1958, he was called to the home of plaintiff's daughter, and plaintiff was complaining of pain and had been in an accident, and was quite agitated. He said that her chief complaints boiled down to pain in her right leg and right shoulder, and that she had a number of bruises over her body, but those were her main complaints. He said that she had a swelling over her right shoulder and that she had swelling and extreme tenderness over her right ankle, with pain when her foot was moved in any direction. On that day he sent her to the hospital where she was made as comfortable as possible and an X-ray was taken of the right ankle, which showed a chipped fracture. The bone was cracked but it was not out of place, and this was on the inside of the ankle bone. The doctor said that efforts were made to reduce the swelling in order that a cast could be applied, and that this was done on May 23rd. The cast remained on her leg for 6 weeks and she remained in the hospital approximately one week, being discharged on May 26th. While she was in the hospital the doctor saw her twice daily. Then he saw her in his office on June 3, 17, July 5, 8, and 22, and August 17 and 23, when she was dismissed, still having some pain; and he saw her again on January 3, July 3 and 27, 1959. The doctor said that she had a noticeable limp, favoring the right ankle and had almost complete fixation, which means that the ankle would hardly move. And he said that the plaintiff had post-traumatic arthritis, being a stiffness which developed after the injury, accompanied by pain, which still continues at the time of the trial. He definitely testified that she has a permanent injury and that so far as he could tell it is going to be permanent and interferes with her work as a nurse for old people and for children.
(Hn 1) After a consideration of the entire record in this case we are of the opinion that the verdict in favor of plaintiff is so grossly inadequate that it should be reversed and a new trial awarded to her.
Accordingly the judgment of the lower court is hereby reversed and the cause remanded for another trial.
Reversed and remanded.
Lee, Arrington, Gillespie and McElroy, JJ., concur.
ON MOTIONS TO CORRECT JUDGMENT
The appellee, Mrs. Jeanine Stone, has filed a suggestion of error and a motion to correct judgment in both of which she suggests that since the jury found for her in the lower court and this Court found no error as to that action, the order of remand should affirmatively show that the case was affirmed as to Mrs. Jeanine Stone and the new trial ordered should be against Mrs. Mantile S. Murray only.
The appellant, Mrs. Lula Murray, has also filed a motion to correct judgment in several alternatives and calls attention to the fact that the new trial ordered should be on the issue of damages only.
In response to all of these motions and the suggestion of error referred to, the judgment is modified to the extent that the case is affirmed as to Mrs. Jeanine Stone, and is also affirmed on the issue of liability as to Mrs. Mantile S. Murray, and is reversed and remanded for a new trial against Mrs. Mantile S. Murray on the issue of damages only.
Motions to correct judgment sustained in part and overruled in part.
Hall, P.J., and Lee, Arrington and McElroy, JJ., concur.