Opinion
No. 42428.
November 5, 1962.
1. Motor vehicles — intersectional collision — proximate cause — defendant's negligence, sole proximate cause of accident.
Negligence of driver of farm tractor, which was being driven on intersecting street, and which, after stopping, must have rolled onto highway, was sole proximate cause of collision between front end of tractor and defendants' truck and trailer which had right of way at intersection and which was being driven entirely on pavement of highway.
Headnote as approved by Ethridge, J.
APPEAL from the Circuit Court of Covington County; HOMER CURRIE, J.
W.W. Dent, Collins; Welch, Gibbes Graves, Laurel, for appellants.
I. Neither a possibility nor a scintilla of evidence will sustain this verdict which is against the overwhelming weight of the evidence, and is neither warranted nor supported by the evidence in the case, and which manifests passion and prejudice against the appellants by the jury. Baughman v. Welborn, 241 Miss. 841, 133 So.2d 541; Beard v. Williams, 172 Miss. 880, 161 So. 750; Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Denman v. Denman, 242 Miss. 59, 134 So.2d 457; Denman v. Spain, 242 Miss. 431, 135 So.2d 195; Dukes v. Sanders, 239 Miss. 543, 124 So.2d 122, 125 So.2d 294; Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800; Illinois Central R. Co. v. Cathey, 70 Miss. 332, 12 So. 253; Illinois Central R. Co. v. Crawford, 244 Miss. 300, 143 So.2d 427; Illinois Central R. Co. v. Smith, 243 Miss. 767, 140 So.2d 856; Majure v. Herrington, 243 Miss. 692, 139 So.2d 635; Mobile O.R. Co. v. Bryant, 159 Miss. 528, 132 So. 539; Montgomery Ward Co. v. Windham, 195 Miss. 848, 16 So.2d 622; Pullin v. Nabors, 240 Miss. 864, 128 So.2d 117; Russell v. Mississippi Central R. Co., 239 Miss. 741, 125 So.2d 283; S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So.2d 650, 68 A.L.R. 167; Williams v. Hood, 237 Miss. 355, 114 So.2d 854; Yazoo M.V.R. Co. v. Skaggs, 181 Miss. 150, 179 So. 274; Secs. 8217, 8191, 8197(a), 8197(b), Code 1942; 10 Blashfield, Cyclopedia of Automobile Law and Practice, Sec. 6555 p. 391.
II. In view of the fatal variance between appellee's pleading and proof, the lower court erred in submitting the case to the jury. King v. Mississippi Power Light Co., 243 Miss. 160, 142 So.2d 222.
III. The lower court erred fatally in granting appellee's instruction, as follows: ". . . If you find from a preponderance of the evidence in this case that the driver of the Standard Oil Company of Kentucky truck saw the plaintiff, Vardaman A. Wade, parked on the apron of the intersection where the collision occurred and had a reasonable opportunity to so operate the Standard Oil Company truck as to avoid colliding with the plaintiff and his tractor, then, under the law, for failing to so operate his truck so as to avoid colliding with the plaintiff when he had a reasonable opportunity to do so, the driver of the Standard Oil Company of Kentucky truck was negligent, and it is, therefore, if you so believe from the preponderance of the evidence, the sworn duty of you gentlemen under the law of the State of Mississippi to find the defendants negligent in this case and to return your verdict in favor of the plaintiff, Vardaman A. Wade." Burnley v. Mullins, 86 Miss. 441, 38 So. 635; Greenville Ice Coal Co. v. Brown, 236 Miss. 253, 109 So.2d 858; McLeod Lumber Co. v. Anderson Mercantile Co., 105 Miss. 498, 62 So. 274; New Orleans N.E.R. Co. v. Ready, 238 Miss. 199, 188 So.2d 185; Southern R. Co. v. Lanning, 83 Miss. 161, 35 So. 417; Alexander, Mississippi Jury Instructions, Sec. 3574, p. 186.
Allred Adams, John D. Kervin, Jr., Collins, for appellee.
I. There was no fatal variance between appellee's pleading and the proof submitted to the jury. Gower v. Strain, 169 Miss. 344, 145 So. 244.
II. The instruction complained of correctly states the law of the case applicable to the particular facts.
Vardaman A. Wade, appellee, brought this suit in the Circuit Court of Covington County against Standard Oil Company of Kentucky and L.N. Scarborough, defendants-appellants, for personal injuries to him resulting from a collision between a tractor driven by Wade and a transport truck and trailer belonging to Standard and driven by Scarborough. The jury rendered a verdict for plaintiff for $1,500 against both defendants, and a judgment was entered accordingly.
After a careful examination of the record, we are convinced that the circuit court should have given appellants their requested peremptory instruction. Hence the judgment is reversed, and judgment is entered here for Standard and Wade.
The Standard truck was moving south on U.S. Highway 49 in the City of Collins. Scarborough, the driver, was well within the thirty mile speed limit. Wade, driving a farm tractor, was on Eighth Street, which runs east and west and crosses Highway 49. His tractor, on the west side of the highway, but headed east, drove up to the highway and stopped 3-4 feet from the concrete pavement. Wade said he was waiting for southbound traffic to pass. There was a passenger car ahead of the Standard truck some 30-50 feet, when Wade saw it. Manifestly the car had occupied the intersection, and the truck was so near it as to constitute an immediate hazard, precluding Wade from entering the intersection. The truck turned neither right nor left, according to Wade's testimony. When it began passing Wade's stopped vehicle, the front of the tractor hit the truck and trailer about half way back on the right side, near the "pull-wheels". Wade denied his tractor rolled forward toward the highway, but admitted the point of impact. Apparently he did not know what happened.
After the accident Wade told three disinterested witnesses, in addition to Scarborough, that he did not see the transport truck, and his tractor rolled into its side. He did not deny these admissions against interest, but said he did not remember, and he was shaken up from the collision. Wade paid a fine for failing to yield the right of way. The truck stopped, after the impact, within 18-30 feet. There were no skid marks. Photographs taken shortly after the accident, before either vehicle was moved, reflect the truck was headed straight south and all wheels were on the pavement of the highway. The tractor was on the edge of it, even after the impact.
In short, the evidence does not reflect the defendants were guilty of any negligence proximately contributing to plaintiff's injuries, but, on the contrary, plaintiff's own negligence was the sole proximate cause of the accident. The truck was on the highway, the driver was keeping a careful lookout and driving within speed limits, and had the right of way at this intersection, having either entered it or being so close to it as to preclude lawful entry by Wade. Appellants can be held liable only if they were guilty of negligence. There was none on this record. There was no factual issue of negligence to submit to the jury.
Plaintiff's sole instruction on the merits apparently was based on a last clear chance theory, that the truck driver had a reasonable opportunity to avoid colliding with plaintiff. Yet the evidence shows that there was no such opportunity by Scarborough to avoid the collision; that Wade's tractor must necessarily have rolled into the side of the truck and trailer. It was impossible for the latter to have moved sideways 3-4 feet, hit the tractor, and then straightened out on the highway before stopping. We might conjecture that there would be a possibility of such an event happening, but verdicts can not be based on possibilities. Denman v. Spain, 242 Miss. 431, 135 So.2d 195 (1961); Yazoo and M.V.R. Co. v. Skaggs, 181 Miss. 150, 179 So. 274 (1938). (Hn 1) The only reasonable inference to be drawn is that Wade's negligence was the sole proximate cause of the accident. The testimony and the physical facts require this conclusion.
Reversed and judgment rendered for appellants.
Lee, P.J., and Kyle, Gillespie, and McElroy, JJ., concur.