Opinion
No. 41339.
February 1, 1960.
1. Motor vehicles — collision — negligence — instructions — peremptorily charging jury that automobile driver was negligent — reversible error.
In action for death of automobile passenger in collision with truck operated by defendants, wherein there was evidence to support plaintiffs' theory that truck with headlights shining so as to blind and confuse automobile driver was so parked as to extend onto and block blacktopped portion of highway on which automobile was traveling, granting instruction requested by defendants, peremptorily charging jury that automobile driver was negligent in so driving automobile as to collide with truck and that such negligence was a proximate cause of collision, was reversible error.
2. Motor vehicles — collision — negligence — instructions — imputing driver's negligence to passenger — reversible error.
In such case, evidence afforded no basis for instruction authorizing jury to find that automobile driver and passenger were acting together and in concert and, if they so found, to impute driver's negligence to passenger, and granting such instruction at defendants' request was reversible error.
Headnotes as approved by Hall, J.
APPEAL from the Circuit Court of Clarke County; WILLIAM J. GUNN, JR., Judge.
Robert E. Covington, Jr., Quitman; K. Hayes Callicutt, Frank T. Williams, Satterfield, Shell, Williams Buford, Jackson, for appellants.
I. In this jurisdiction all questions of negligence and proximate cause are for the determination of the jury. Arnold v. Reede, 226 Miss. 324, 92 So.2d 237; Barnes v. Ashworth (Va.), 153 S.E. 711; Bradley v. Clarke, 219 Ky. 438, 293 S.W. 1082; Buntyn v. Robinson, 233 Miss. 360, 102 So.2d 126; Car General Ins. Corp. v. Cheshire, 159 F.2d 985; Central Manufacturers Mut. Ins. Co. v. Linkenhoder (La. App.), 41 So.2d 472; Cox v. Dempsey, 177 Miss. 678, 171 So. 788; Dame v. Estes, 233 Miss. 315, 101 So.2d 644; Delfosse v. New Franklen Oil Co. (Wis.), 230 N.W. 31; Delta Cotton Oil Co. v. Elliott, 179 Miss. 200, 172 So. 737, 174 So. 550; Dent v. Town of Mendenhall, 139 Miss. 271, 104 So. 82; F.B. Walker Sons v. Rose, 223 Miss. 494, 78 So.2d 592; Gilliam v. Sykes, 216 Miss. 54, 61 So.2d 672; Harper v. Wilson, 163 Miss. 199, 140 So. 693; Harris v. McCuiston, 217 Miss. 601, 62 So.2d 692; Padgett v. Barngan, 228 Ky. 440, 15 S.W.2d 272; Planters Wholesale Grocery v. Kincade, 210 Miss. 712, 50 So.2d 578; Reid v. Halpin (Miss.), 178 So. 88; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Somerville v. Keeler, 165 Miss. 244, 145 So. 721; Waynick v. Walrond (Va.), 154 S.E. 522; Secs. 1455, 1530, Code 1942; 38 Am. Jur., Sec. 351 pp. 1058, 1059; 53 Am. Jur., Sec. 78 p. 76; 65 C.J.S., Negligence, Sec. 264a; Alexander's Mississippi Jury Instructions, Sec. 3529.
II. The trial court should not have granted an instruction to the defendants to the effect that if the jury believed from the preponderance of evidence the driver of the automobile in which the intestate of the plaintiffs was riding and the intestate of the plaintiffs were acting in concert then the negligence of the driver could be imputed to the intestate of the plaintiffs and should have granted to the plaintiffs their requested instruction to the effect that the negligence of the driver of the automobile, if any, could not be imputed to their intestate unless the defendants proved that their intestate was put upon notice of the recklessness of such driver. Jones v. Dixie Greyhound Lines, 211 Miss. 34, 50 So.2d 902; Matthews v. Derecin, 360 Pa. 349, 62 A.2d 6; Pryor v. LeSage (Tex. Civ. App.), 133 S.W.2d 308; Stearms v. Lindow (D.C., 70 F.2d 738; 4 Blashfield's Cyc. of Automobile Law Practice, Sec. 2494 pps. 678, 689; Blashfield's Cyc. of Automobile Law Practice, Sec. 6120 p. 99.
III. The trial court should have permitted the plaintiffs to introduce proof as to the point of impact by the testimony of the highway patrolmen who investigated the accident. Ellington v. Eley (Miss.), 56 So.2d 796; Grant v. Clarke, 78 Idaho 412, 305 P.2d 752; Kalfus v. Fraze, 136 Cal.App.2d 415, 288 P.2d 967; Tuck v. Butler (Okla.), 311 P.2d 212.
Riddell Dabbs, Quitman; Snow, Covington Shows, Meridian, for appellees.
I. Cited and discussed the following authorities: Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Cumberland Tel. Tel. Co. v. Woodham, 99 Miss. 318, 54 So. 890; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Graves v. Hamilton (Miss.), 177 So. 360; Graves v. Johnson, 179 Miss. 465, 176 So. 256; Gulf Refining Co. v. Brown, 196 Miss. 131, 16 So.2d 765; Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487; Meeks v. McBeath, 231 Miss. 504, 95 So.2d 791; Mississippi Cent R. Co. v. Alexander, 169 Miss. 620, 152 So. 653; Mississippi P. L. Co. v. Limbo, 202 Miss. 532, 32 So.2d 573; Nelson v. Illinois Cent. R. Co., 98 Miss. 295, 53 So. 619, 31 L.R.S. (N.S.) 688; Parkins v. Brown, 241 F.2d 367; Porter v. Nesmith, 124 Miss. 517, 87 So. 5; Public Service Co. v. Watts, 168 Miss. 235, 150 So. 192; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Sohio Petroleum Co. v. Fowler, 231 Miss. 72, 94 So.2d 350; Southern Beverage Co., Inc. v. Barbarin, 219 Miss. 493, 69 So.2d 395; Teche Lines v. Dansforth, 195 Miss. 226, 12 So.2d 784; Terry v. Smiley, 161 Miss. 31, 133 So. 662; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Secs. 8138, 8144, 8175, 8176-3(b), 8229-01(a), 8229-01(f), 8229-12(a), Code 1942; 29 C.J. 694.
This is an appeal from a judgment of the Circuit Court of Clarke County, wherein the survivors of Royce Reed Thompson brought suit against Vern W. Spickard and A.C. Martin for the recovery of damages for his death in an automobile and truck collision a few miles west of Quitman at the intersection of State Highway No. 18, which is a blacktopped highway, with old Highway No. 18. In the accident in question the Thompson boy was riding as a passenger of Byron C. McLeod who was the owner of the automobile. In the collision Thompson was horribly burned to death. The theory of the plaintiffs' case was that the truck operated by Spickard and Martin was parked on the old highway with the front of the truck extending into the hard surfaced portion of the new highway so as to block the same, and with the headlights thereon shining to the east so as to be confusing to the driver of the car in which plaintiffs' intestate was riding, and so as to blind him in undertaking to pass the truck.
(Hn 1) It is sufficient to say that the facts in the case were in dispute and that there was evidence to support the plaintiffs' theory of the case. In this state of the case, the defendants requested and were granted the following instruction: "The Court instructs the jury that the driver of the automobile in which deceased was riding was guilty of negligence in so driving the automobile as to cause it to run into the truck and his negligence was a proximate cause of the car running into and colliding with the truck." We think that the granting of this instruction peremptorily charging the jury that the driver of the automobile, in which deceased was riding, was guilty of negligence in so driving the automobile as to cause it to run into the truck, and that his negligence was a proximate cause of the car running into and colliding with the truck, was erroneous, and that said instruction should not have been granted and that it requires a reversal of this case.
The defendants also requested and were granted the following instruction: "The Court instructs the jury that if you believe from the preponderance of the evidence in this case that the two gentlemen, Mr. Thompson and Mr. McLeod were acting together and in concert, then, if you so find the driver's negligence is imputed to and was the negligence of deceased."
(Hn 2) We do not think that there was any basis for an instruction authorizing the jury to find that Thompson and McLeod were acting together and in concert, and that the negligence of McLeod is imputed to and was the negligence of the deceased. For the erroneous granting of this instruction, we are of the opinion that the case should be reversed and remanded for another trial. There was no evidence that Thompson and McLeod were acting together and in concert and that the driver's negligence is imputed to and was the negligence of the deceased. The accident in question occurred in almost a split second after McLeod, the owner of the car, which he was driving, came upon the scene; and this is not a case where the deceased had an opportunity to observe any reckless driving on the part of McLeod, and is not a case where he had sufficient time in which to protest against the alleged negligence of the driver and owner of the car in which he was riding. There is no evidence that Thompson had been put on notice that McLeod was a reckless driver, and there is nothing in the record to show that McLeod's negligence should be imputed to Thompson.
It is also assigned as error that the trial court erred in refusing to permit a witness for the plaintiffs to testify as to the point of impact. We do not pass upon this alleged error, but we observe that during the trial, after the plaintiffs had offered to show the point of impact by witnesses who were not present at the moment of collision, that the defendant came along and introduced witnesses who also were not present at the time who did testify as to the point of impact, but, as stated, we do not pass upon this question. However, for the reasons given, the judgment of the lower court must be reversed and the cause remanded for another trial on the merits.
Reversed and remanded.
Roberds, P.J., and Arrington, Ethridge and Gillespie, JJ., concur.
ON MOTION TO RETAX COSTS
In entering the judgment in this case the Clerk's office inadvertently entered a judgment to the effect that all costs arising in this Court and all costs arising in the court below should be taxed against the appellants and the appellants have filed a motion under authority of Section 1579 of the Mississippi Code of 1942 to retax all costs in this Court and in the court below against the appellees.
The appellants rely on the case of Wolff v. Mauceli, 117 So.2d 332-333, but we do not think that that case is controlling of the entire relief sought by the motion as to all costs in the court below. However, we are of the opinion that all costs in this Court should be taxed against the appellees and to that extent the motion to retax costs will be sustained.
Motion to retax costs sustained.
All justices concur except Roberds and Arrington, JJ., who took no part.