Opinion
No. 39066.
February 1, 1954.
1. Automobiles — collision — evidence — sustained verdict for defendant.
In action for damages arising out of motor vehicle collision, evidence was sufficient to sustain verdict for defendant.
2. Automobiles — statement of plaintiff's driver — properly admitted.
In such action, wherein evidence as to physical and mental condition of plaintiff and driver of his pick-up, while they were in hospital, was conflicting, driver's statement in presence of plaintiff that he was driving 50 miles an hour, was properly admitted for consideration of jury.
3. Automobiles — instructions — excessive speed of plaintiff's truck.
In such case, defense instructions in regard to excessive speed of plaintiff's truck were warranted by the evidence.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Forrest County; F. BURKITT COLLINS, Judge.
Hannah, Simrall Aultman, Hattiesburg, for appellant.
I. The Court committed fatal error in granting instructions to the defendant, which instructions were without foundation in the evidence. A number of instructions dealt with the question of excessive speed by the plaintiff vehicle, when, in truth and in fact, there is no evidence of excessive speed in the record, and, therefore, no occasion to request or obtain such instructions. These instructions, as given, could do nothing but confuse, prejudice, and improperly affect the jury and, in the opinion of the appellant, resulted in an improper verdict. Crighton v. Halliburton Moore, 154 Miss. 265, 122 So. 200; Holmes v. Holmes, 154 Miss. 713, 123 So. 865; Lucedale Veneer Co. v. Rodgers, 211 Miss. 613, 53 So.2d 69; Mobile, Jackson K.C.R.R. v. Jackson, 92 Miss. 517, 46 So. 142; Ryals v. Douglas, 205 Miss. 695, 39 So.2d 311; Stevens v. Stanley, 153 Miss. 809, 154 Miss. 627, 122 So. 755; Stewart v. Coleman Co., 120 Miss. 28, 81 So. 653 (suggestion of error 82 So. 69); Tarver v. Lindsay, 161 Miss. 319, 137 So. 93; 20 Am. Jur., Evidence, Sec. 1180 p. 1030; 32 C.J.S., Evidence, Sec. 1038 p. 1089.
II. The Court committed fatal error in admitting evidence into the record tending to contradict the testimony of the plaintiff and the witness Strickland, which testimony so offered by the defendant, was based upon an improper interview had with the plaintiff and his witness at a time when the plaintiff and his witness were suffering from pain, shock, and when they were under sedatives. The plaintiff properly testified, as a competent witness, that he was not in control of his mental faculties at the time in question, that he did not invite the defendant's representatives into his sick room, and it is shown that all of this was done without counselling the plaintiff's physician and over the plaintiff's objections. This evidence, so offered, was highly improper and served to prejudice the jury against the plaintiff and, the plaintiff submits, influenced the jury to return an improper verdict. 20 Am. Jur., Trial, Sec. 335 p. 312; 58 Am. Jur., Witnesses Sec. 114 p. 89.
III. There is no competent evidence in the record from which the jury could properly return the verdict which was returned. The uncontroverted evidence fails to establish any negligence on the part of the plaintiff and conclusively establishes negligence against the defendant. The verdict was manifestly against the evidence, and cannot be supported by any evidence in the record. Lockhart v. Bothea (Miss.), 44 So.2d 851.
Wingo Finch, M.M. Roberts, Hattiesburg, for appellee.
I. The instructions correctly announce the law. Lucedale Veneer Co. v. Rodgers, 211 Miss. 613, 53 So.2d 69; Mobile, Jackson K.C.R.R. v. Jackson, 92 Miss. 517, 46 So. 142; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Wheat v. Teche Lines, Inc., 181 Miss. 408, 179 So. 553; Sec. 8176, Code 1942; 5 Am. Jur., Sec. 261 p. 677; Vol. 1, Alexander's Miss. Jury Instructions, Sec. 801 p. 248.
II. Evidence for defendant was competent. 9 A.L.R. 2d 904-5; 20 Am. Jur., Secs. 523, 731 pp. 448, 611; 58 Am. Jur., Sec. 113 p. 89.
III. The verdict of the jury is supported by the law and facts and should be upheld. Alexander v. Flood, 77 Miss. 925, 28 So. 787; Crawford v. Bank of Seminary for Use of Williams, 178 Miss. 129, 172 So. 750; Federal Credit Co. v. Zepernick Groc. Co., 153 Miss. 494, 121 So. 114; Jackson Opera House Co. v. Cox, 188 Miss. 237, 192 So. 293; Jefferson v. Denkmann Lumber Co., 167 Miss. 246, 148 So. 237; Meridian Taxicab Co., Inc., v. Ward, 184 Miss. 499, 186 So. 636; Mingo v. City of Jackson, 202 Miss. 260, 31 So.2d 900; Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896; Neely v. City of Charleston, 204 Miss. 360, 37 So.2d 495; Saenger Theatres Corp. v. Herndon, 180 Miss. 791, 178 So. 86; Smith v. I.C.R.R. Co., 214 Miss. 293, 58 So.2d 812; Southern Ry. Co. v. Jackson (Miss.), 49 So. 738; Wright v. I.C.R.R. Co., 196 Miss. 150, 16 So.2d 381.
(Hn 1) The issue in this case was sharply disputed, and the evidence was sufficient to sustain the verdict for the defendant. (Hn 2) The evidence as to the physical and mental condition of E.W. Stephens and M.D. Strickland, the driver of the pick-up, while they were in the hospital, was conflicting. Consequently, Strickland's statement, in the presence of Stephens, that he was driving at a speed of fifty miles an hour, was for the jury, and was properly admitted. Such statement, together with the physical facts as to the distance, which the pick-up skidded, and the other evidence, fully justified the phase of the defense instructions in regard to excessive speed. The verdict was not against the weight of the evidence. Be ides, there was no motion for a new trial.
Affirmed.
McGehee, C.J., and Hall, Kyle and Holmes, JJ., concur.