Opinion
No. 40023.
March 12, 1956.
1. Motor vehicles — collision — personal injuries — evidence — reconcilable contradictions in witness' testimony — confused witness — juries — judgment for plaintiff.
In suit for injuries sustained in automobile collision on the ground that defendant was driving on the wrong side of the road and that collision occurred when plaintiff attempted to turn left to avoid defendant's automobile, evidence sustained judgment for plaintiff, and testimony of plaintiff was not required to be rejected, because her testimony on cross-examination contradicted in material particulars her testimony on direct examination, since jury could find her entire testimony was reconcilable and that plaintiff was confused on cross-examination.
2. Evidence — juries — contradictions in the testimony.
A jury has the right to appraise contradictions within the testimony of a witness, and to determine for itself at what point witness is telling the truth and at what point witness is confused or testifying falsely.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Lee County; C.R. BOLTON, Special Judge.
Cunningham Cunningham, Booneville, for appellant.
I. Section 1537 of the Mississippi Code of 1942 authorizes the assignment of error against the Trial Court in refusing a new trial when on the whole record the testimony of the plaintiff is so contradictory and so unbelievable as to justify the Court in believing that justice had not been done. Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; White v. McCoy (Miss.), 7 So.2d 886; Flournoy v. Brown, 200 Miss. 171, 26 So.2d 351.
Adams, Long Adams, Tupelo, for appellee.
I. The testimony even of disinterested and unimpeached witnesses on the subject of measurements, distances and the like, which is based merely on memory, estimate or casual observation, must yield to that which is based on actual measurement. S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650.
II. A party is not bound by her testimony exclusively when it contradicts her other witnesses, particularly so when the testimony is a matter of estimation either of time or distance, and when the positive testimony of the disinterested eye witness to the incident are testified to positively and unequivocally. 32 C.J.S., Sec. 1040(c) p. 1110.
Appellant, Tulane E. Posey, was defendant in the Circuit Court of Lee County in a suit brought by appellee, Tennessee Weatherspoon, for damages for injuries to her resulting from a collision of the two automobiles of the parties on March 8, 1954.
The jury rendered a verdict for appellee in the amount of $3,000, and on this appeal from a judgment based upon that verdict appellant contends that the verdict is against the great weight of the evidence, and that an erroneous instruction was given appellee.
(Hn 1) We have considered carefully the evidence, but no purpose will be served by detailing it. In addition to the testimony of plaintiff in support of her version, there were three disinterested eyewitnesses who testified for her. The substance of this evidence was that the defendant had been driving on the wrong side of the highway for at least 117 feet immediately before the collision with the car in which plaintiff was riding, which was on its right side of the road; that at about 20 feet before the collision plaintiff's car attempted to turn to the left to avoid defendant's car, which was in the wrong lane; and that the collision occurred at about the center of the highway. The defendant and his wife testified, on the other hand, that they were on their right side of the road when the collision occurred. Defendants also offered several other witnesses who testified as to contradictory statements allegedly made by the highway patrolmen concerning their findings when they arrived at the scene of the accident about 30 minutes after it occurred. The two patrolmen testified for plaintiff as to the physical facts they observed when they arrived. They confirmed the version of plaintiff's witnesses. The conflicts in the testimony were for the jury to resolve, and it did so adversely to appellant's version. The evidence was ample to support the verdict.
Appellant argues that the appellee on cross-examination contradicted in material particulars her testimony on direct examination. However, the jury had the right to find that her entire testimony was reconcilable, that she was confused on cross-examination about what happened in the last 20 feet before the impact, and that viewing her testimony as a whole, it was in accord with that of the three eyewitnesses, and the two highway patrolmen. (Hn 2) A jury has the right to appraise contradictions within the testimony of a witness, and to determine for itself at what point she is telling the truth and at what point she is confused or testifying falsely. 32 C.J.S., Evidence, Section 1040 (c), pages 1112-1113.
The leading case on this point in Mississippi is F.W. Woolworth Company v. Freeman, 193 Miss. 838, 849, 11 So.2d 447 (1943). Also in accord are Anderson v. King, 63 So.2d 792 (Miss. 1953); Byrd v. Masonite Corporation, 67 So.2d 724, 726 (Miss. 1953); Thompson v. Thomas, 69 So.2d 238, 240 (Miss. 1954); and Mutual Life Insurance Company of New York v. Rather, 73 So.2d 163, 165 (Miss. 1954).
For these reasons plaintiff's instruction No. 3 was properly given, since it set forth her theory of negligence by defendant.
Appellee in her brief withdrew her cross appeal on the quantum of damages, so that issue is not before us.
Affirmed.
McGehee, C.J., and Lee, Arrington and Gillespie, JJ., concur.