Opinion
No. 36115.
May 13, 1946.
1. AUTOMOBILES.
In action for damages sustained in collision at intersection, allegedly because truck was on wrong side of intersection, truck driver's failure to see taxicab could not be pleaded in defense, where truck driver should have seen the taxicab.
2. TRIAL.
In action for damages sustained in taxicab and truck collision at intersection allegedly because truck was on wrong side of intersection, trial court should have given taxicab owner's requested instruction that truck driver was negligent in cutting intersection, and in failing to be on lookout on entering intersection, and that if jury believe from the evidence that such negligence was a proximate cause of collision, it was jury's duty to find for taxicab owner.
3. APPEAL AND ERROR. Trial.
Where defendant in automobile collision case did not request an instruction on comparative negligence, trial court could not voluntarily instruct the jury to apportion the damages, and the Supreme Court on appeal could not consider comparative negligence.
4. TRIAL.
In action for damages sustained in taxicab and truck collision at intersection allegedly because truck was on wrong side of intersection, trial court should have given taxicab owner's requested instruction that if jury believed that truck driver's act in cutting corner, failing to be on the lookout, and in entering the intersection were the proximate causes of the collision, they should find for taxicab owner.
5. DAMAGES.
Requested instruction that punitive damages are recoverable where defendant's acts were willful or wrongful, or done with a reckless disregard of plaintiff's rights, was properly refused for failure to comply with rule that punitive damages are recoverable not only for willful and intentional wrong but also for gross and reckless negligence.
6. TRIAL.
In action for damages sustained in automobile collision at intersection, trial court properly refused to give defendant's requested instruction which was a correct abstract statement of the rules of the road, where it ignored admission of defendant's driver that he cut corner and was therefore on wrong side of middle of intersection, and ignored fact that plaintiff's taxicab was entering on right side of intersection.
APPEAL from the Circuit court of Sunflower county, HON. S.F. DAVIS, Judge.
Ernest Kellner, of Greenville, for appellant.
The court erred in refusing the instruction identified by the letter "A" which is as follows: "The Court instructs the jury for the plaintiff that the driver of the truck was negligent in cutting the intersection of Nelson and Hinds Streets and that he was guilty of negligence in failing to be on the look-out in entering said intersection, and if you believe from the evidence that the aforesaid negligence was the proximate cause of the collision shown by the evidence, it is your duty to find for the plaintiff and to assess his damages in such amount as you believe from the evidence he has sustained, not to exceed the amount sued for." The evidence, including the testimony of the driver of the truck, shows that he did cut the intersection of Nelson and Hinds Streets and that he was not on the lookout on entering the intersection.
White v. Weitz, 169 Miss. 102, 152 So. 484; Code of 1942, Secs. 1742, 8189, par. (b), 8196.
The court erred in refusing the instruction identified by the letter "B" which is as follows: "The Court instructs the jury for the plaintiff that if you believe from the evidence that the acts of the defendant, his agent, employee or servant, in causing the truck of the defendant to run into and damage the automobile of the plaintiff, were wilful or wrongful or done with a reckless disregard of the rights of the plaintiff, then in addition to actual or compensatory damages sustained by the plaintiff, as shown by the evidence, you may find for the plaintiff punitive damages, provided, however, that the total sum of the actual damages and the punitive damages does not exceed the amount sued for, namely, the sum of $1,500.00." This instruction simply embodies the familiar and well-settled rule of punitive damages. Most certainly the jury would have been warranted in returning a verdict for punitive damages upon the evidence that the driver of the truck violated all traffic regulations applicable to a left turn at an intersection in order to make a short cut to his destination. Nothing could be in more utter disregard of the rights of appellant to enter and proceed across the intersection upon the assumption that the driver of the truck would observe such traffic regulations.
While some of appellee's instructions embody correct abstract principles of law, none of them are applicable to the evidence in this case. Such is Instruction No. 1. The overwhelming proof and the point of the collision show that the taxi lawfully entered the intersection first, as testified to by appellant's witnesses. The overwhelming proof, including that of the occupant and the driver of the truck, shows that the truck entered the intersection unlawfully.
Instruction No. 2 is based on the appellant's negligence, which, if any, was not a bar to a recovery unless it was the "sole" proximate cause of the collision. It may have been, if the evidence showed such negligence, which it does not, a proximate and contributing cause, but would not bar a recovery unless it was the "sole" proximate cause.
There is no evidence whatever to support Instruction No. 3. In addition, the truck being unlawfully in the intersection, the driver of the taxi was required only to use every effort to avoid the collision, which, according to all of the evidence, including that of the driver of the truck, he did, while the driver of the truck, according to his own testimony, did nothing to avoid the collision.
Instruction No. 4 is not supported by any evidence and assumed, which the evidence denies, that the truck had lawfully entered the intersection.
Instruction No. 5 is palpably erroneous and highly prejudicial in that it makes it the duty of the appellant to exonerate himself from negligence, irrespective of the negligence of the appellee, shown by the entire evidence. This instruction violates our contributory negligence statute.
The verdict is definitely contrary to the overwhelming weight of the evidence, and, for this further reason the trial court erred in overruling appellant's motion for a new trial.
Forrest G. Cooper, and Howard S. Davis, both of Indianola, for appellee.
By the instruction identified by the letter "A", which was properly refused, appellant seeks to have the court assume that the acts were negligence per se and contributed proximately to the collision. Were the parties in litigation reversed the appellant would not have been entitled, as a defendant, to have the jury instructed that the appellee here was guilty of contributory negligence. The mere fact that at the time of the accident the driver violated a statute or ordinance will not necessarily stamp him as contributorily negligent. It is essential that the element of proximate cause be established. It will not be presumed from such violation alone. This Court has repeatedly stated that when the evidence on the issue of the liability is squarely in conflict the question is, therefore, one for the jury.
Bradford v. State, 166 Miss. 296, 146 So. 635; McCollum v. Thrift, 156 Miss. 236, 125 So. 544; White v. Weitz, 169 Miss. 102, 152 So. 484; 5 Am. Jur. 745, Sec. 421.
It was not error for the trial court to refuse the instruction identified by the letter "B" because there was evidence before the jury that the appellant was guilty of gross negligence in that the physical facts were such that the appellant could not have had his car under control and was driving at an excessive rate of speed, which apparently the jury found was the proximate cause of the collision and not the simple negligence of the defendant. This court has defined gross negligence as being "that course of conduct which, under the particular circumstances, discloses a reckless indifference to consequences without the exertion of any substantial effort to avoid them."
Teche Lines, Inc., v. Pope, 175 Miss. 393, 166 So. 539.
The question was properly submitted to the jury to determine whose negligence contributed proximately to the damages sustained by the appellant and the appellee, and the jury decided for the appellee.
Appellant assigns as error the giving of each of appellee's instructions. The jury was properly instructed. The theories of both plaintiff and defendant and the law applicable to those theories were properly presented in the instructions.
Myers v. Tims, 161 Miss. 872, 138 So. 578; Terry et al v. Smylie, 161 Miss. 31, 133 So. 662; Cox et al. v. Dempsey, 177 Miss. 678, 171 So. 788.
There was ample evidence to support the view that the driver of the taxicab was negligent and entered the intersection after the driver of the truck. There was ample evidence that the driver of the taxicab saw, or should have seen, that the driver of the truck had already entered the intersection before the taxi did. The jury saw the witnesses, observed their demeanor on the witness stand, and were in position to determine the facts and pass on the facts, and we respectfully submit that the judgment should be affirmed.
Greer et al. v. Pierce, 167 Miss. 65, 147 So. 303; B. Kullman Co. et al. v. Samuels et al., 148 Miss. 871, 114 So. 807.
The appellant sued the appellee in the Circuit Court of Sunflower County for alleged repairs to appellant's taxicab and loss of profits from the use thereof, and punitive damages, charging that a collision between his taxicab and a truck of appellee on July 4, 1945, was proximately due to negligence in the operation of appellee's truck in his business.
About 1:30 in the afternoon on the day of the occurrence, appellant's driver, Logan, was operating his taxicab on Nelson Street in Greenville, going in an easterly direction, when appellee's truck, driven by his driver, on the same street, was going in a westerly direction. The collision occurred at an intersection of Nelson and Hinds Street. Nelson Street runs east and west, and Hinds Street runs north and south. In the middle of Nelson Street there are parkways planted to vegetation, which are located on the former right of way of an abandoned street car system. The day was clear and there was nothing to obstruct the vision of either driver, and each could have and should have seen the other. When the taxicab passed a point east of the center of the intersection, it turned left and north and was apparently in that position when the truck reached the intersection. Instead of passing west beyond the center of the intersection, the truck cut the corner of the parkway in such a way that the right front side of the truck struck the left front part of the taxicab. The driver of the taxicab testified that he saw the truck shortly before the collision and tried to turn to the right out of its way but could not. The driver of the truck testified that he did no see the taxicab until he was right on it, in spite of maintaining a lookout. The truck was on the wrong side of the intersection, the best we can discern from the record. In our judgment, the driver of the truck should have seen the taxicab, and his failure to see it cannot be plead in defense. There is a map of the intersection filed in the record, but it is exceedingly difficult for us to find much assistance from this diagram. The witnesses, who testified as to it, merely pointed to "here" and to "there", and in referring to the corners, did not specify which of the four corners was thus designated so that we could identify same. The testimony was thus rendered unclear, from the manner in which the witnesses pointed out before the jury the locations of the various incidents of the event on the map. This method almost brought the case into the condemnation of Hume et al. v. Inglis et al., 154 Miss. 481, 122 So. 535, and it is to be hoped that on the retrial of this cause the re-creation of the situations will be made clear, both on the map and from the method of eliciting testimony from the witnesses.
Appellant further complains that he was improperly refused two instructions by the trial court, and that all of the instructions granted appellee were erroneous. Appellant asked for and was refused an instruction that the driver of the truck of the defendant was negligent in cutting the intersection of Nelson and Hinds Streets, and that he was guilty of negligence in failing to be on the lookout in entering said intersection, and if the jury believed from the evidence that the aforesaid negligence was the proximate cause of the collision shown by the evidence, it was their duty to find for the plaintiff and to assess damages in such amount as they believed from the evidence he had sustained, not to exceed the amount sued for. Appellee argues that this instruction is tantamount to a peremptory instruction for the appellant. We do not agree. There was nothing to prevent the drivers of these two motor cars from seeing the other's vehicle, and since the driver of the truck ought to have seen the taxicab, he should be deemed to have seen it in considering this instruction. We think the instruction is authorized by White v. Weitz et al., 169 Miss. 102, 152 So. 484. If appellee desired the jury to consider his rights in the matter of comparative negligence, if any, on the part of the driver of appellant's taxicab, he should have requested such an instruction. He did not do so. The trial court, therefore, could not voluntarily instruct the jury to apportion the damages and this Court cannot, therefore, consider comparative negligence here. Avent v. Tucker, 188 Miss. 207, 194 So. 596. The instruction furthermore instructed the jury that if they believe that cutting the corner, and failing to be on the lookout, in entering said intersection, were the proximate causes of the collision, that is to say, both combined, then they should find for the appellant. We think the instruction should have been given, since it was not a peremptory instruction on liability, under the language thereof.
The second instruction refused by the court to the plaintiff was properly refused, and it is not necessary to discuss it here, except to say that it does not conform to the rule laid down in Teche Lines, Inc., v. Pope, 175 Miss. 393, 166 So. 539, 540. The language of the instruction is: "were willful or wrongful, or done with a reckless disregard of the rights of the plaintiff." The language of the decision is: "punitive damages are recoverable not only for willful and intentional wrong, but [also] for such gross and reckless negligence." A careful comparison of the language involved will demonstrate the departure of the instruction from the announcement of this Court in its decision.
Instruction No. 1 for appellee, in our judgment, is a correct abstract statement of the rules of the road, but it ignores in this particular case the admission of appellee's driver that he cut the corner (and was therefore on the wrong side of the middle of the intersection), and it ignores the further fact that appellant's taxicab was entering on the right side of the intersection, and was confusing and should not have been given.
Appellee's instruction No. 2 is erroneous because it ignores the rights of appellant under the doctrine of comparative negligence. To justify this instruction, the plaintiff's negligence, if any, must have been the sole, proximate cause of the collision.
The other instructions of the appellee are erroneous and should not have been given where they ignore likewise the doctrine of comparative negligence, and where they put too heavy a burden on the driver of the taxicab by assuming that the taxicab was the sole, proximate cause of the collision, and where they ignore the aforesaid admission by the driver of the truck that he cut the corner of the intersection and was therefore on the wrong side of the center thereof when the accident occurred.
Since the case must be sent back for retrial due to errors above, we do not discuss other assignments of error. We reverse the judgment of the lower court, therefore, and remand the case for a new trial.
Reversed and remanded.