Opinion
No. 36251.
December 9, 1946.
1. AUTOMOBILES.
Evidence presented question for jury as to whether collision between trucks was caused because driver of defendants' truck was unable to see plaintiffs' truck which had backed into street due to fact that it was raining and that defendants' truck had no windshield wiper or due to general negligence of driver of defendants' truck in not seeing plaintiffs' truck and avoiding the collision.
2. APPEAL AND ERROR.
Where evidence as to manner in which collision between trucks occurred was conflicting and would have supported a verdict either way, it was peculiarly a case for jury on the facts, and Supreme Court could not disturb jury's finding.
3. NEW TRIAL.
Newly discovered evidence which is merely cumulative, or which simply tends to impeach one or more witnesses, is not ground for new trial, and evidence of same kind is that already given, to the same point, is "cumulative," and not merely corroborative.
4. NEW TRIAL.
Where affidavits in support of motion for new trial disclosed that testimony of affiants, if introduced, would have been merely cumulative to character of lights on plaintiffs' truck, the distance of defendants' truck from point of collision when plaintiffs' truck backed into street, and to distance, or space, left by plaintiffs' truck for passage by defendants' truck, motion for new trial was properly denied.
APPEAL from the circuit court of Lowndes county. HON. JOHN C. STENNIS, J.
John F. Frierson, of Columbus, for appellants.
The Court erred in refusing to give the peremptory instruction asked by the defendants at the conclusion of the testimony, the basis of which was that the plaintiffs failed to make out their case, and that plaintiffs' testimony shows that the negligence of the driver of plaintiffs' truck was the sole and proximate cause of the wreck.
Clarke v. Hughes, 134 Miss. 377, 99 So. 6; Mangum v. Reid, 178 Miss. 352, 173 So. 284, 285; Thomas v. Williamson, 185 Miss. 83, 187 So. 220; Truckers Exchange Bank et al. v. Conroy 190 Miss. 242, 199 So. 301, 303; Jakup v. Lewis Grocer Co. et al., 190 Miss. 444, 200 So. 597, 600; Milwaukee St. Paul R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256, 259; Wall v. Cotton (Ala.), 115 So. 690, 691; City of Evansville v. Christy (Ind.), 63 N.E. 876; Town of Gosport v. Evans (Ind.), 13 N.E. 256, 2 Am. St. Rep. 164; Jensen v. Phil. St. P.M. O.R. Co., 12 F.2d 413; Anderson v. Salt Lake City, 10 P.2d 927; Schwalen v. W.P. Fuller Co. et al. (Wash.), 182 P. 592, 10 A.L.R. 296; 25 Am. Jur. 510, Sec. 211; 38 Am. Jur. 845, Sec. 171, p. 878, Sec. 198, p. 1020, Sec. 332, p. 1034, Sec. 334; 2 Berry Law of Automobiles (4 Ed.), Sec. 357, pp. 583-584; Babbitt Motor Vehicle Law (4 Ed.), p. 518, Sec. 702, p. 533, Sec. 723, p. 590-591, p. 1023, Sec. 1445, p. 1138, Sec. 1619; 118 A.L.R. 242, 243 et seq.
The court erred in granting instruction No. 1 for the plaintiffs, because said instruction, in effect, required the defendants to anticipate negligence of the plaintiffs and to protect themselves against injuring the plaintiffs or being injured by them. The entire instruction is general and not applicable to the case at bar, and no circumstances are given by which the jury could conclude what the negligence consisted of.
Norfolk Western v. Ernest, 229 U.S. 114, 57 L.Ed. 1096; Broudy v. Lebin (Va.), 32 A.L.R. 249, 254; C.C. St. L.R. Co. v. Cozart, 79 N.E. 532, 538; Lake Erie W.R. Co. v. Charman, 161 Ind. 95, 103, 67 N.E. 923; Penn. Co. v. Congdon, 134 Ind. 226, 33 N.E. 795, 39 Am. St. Rep. 255; 53 Am. Jur. 422, Sec. 525, p. 451, Sec. 573; 34 Words Phrases (Per. Ed.), p. 718.
The court erred in refusing to give Instruction No. 3 asked by the defendants, which instruction was based on and practically in the verbiage of Section 8146 of the Code of 1942, "Required obedience to traffic law. — It is unlawful and unless otherwise declared in this title with respect to particular offenses, it is a misdemeanor for any person to do any act forbidden or fail to perform any act required in this Act."
The court erred in refusing to grant a new trial on motion of defendants, made after verdict and judgment against them. First, on the ground that the verdict and judgment were contrary to the law and evidence, and second, on the ground of newly discovered evidence, and, third, because there has been a miscarriage of justice as shown by the entire record and the evidence of the facts and circumstances in the case.
Warren v. Frank Gardner Hardware Supply Co., 96 Miss. 284, 51 So. 129; Southern Ry. Co. v. Elder, 110 Miss. 461, 70 So. 549; Newton v. Homochitto Lumber Co., 162 Miss. 20, 138 So. 564; Code of 1942, Secs. 1536, 1537, 8144, 8198, 8228, 8230.
W.L. Sims, of Columbus, for appellee.
The sole issue in this case is the carelessness of the appellant in the driving of his truck, and his admission that he did not see the other truck shows clearly the negligence on his part which was the proximate cause of the collision.
It was a jury question and the jury rendered a verdict in favor of the appellees, which we submit was just and right.
Appellants and appellees are both partnerships. Hereafter we will refer to appellants as Thompson and appellees as Staggers. Staggers sued Thompson for damages to his truck caused by the alleged negligence of Thompson. The jury returned a verdict for Staggers for $243.79.
Thompson requested, and was refused, a peremptory instruction. He says that was reversible error. This accident happened within and on the south side of Main Street in Columbus, Mississippi. The time was about six to six-thirty o'clock on the morning of February 5, 1945. It was yet dark and rain was falling. Staggers owns and operates a bakery located on a lot adjoining Main Street on the south. His servant backed one of his trucks from his bakery along a private driveway into the south side of Main Street. Thompson was driving his truck eastwardly along Main Street and the two trucks collided in Main Street, after the Staggers truck got into the Street. Staggers claims that as his truck entered the street the Thompson truck was a block and a half west and Thompson ran into his truck because he, Thompson, did not see the Staggers truck, due to the fact it was raining and the Thompson truck had no windshield wiper, or due to general negligence in not seeing the Staggers truck and avoiding the collision. Thompson claims that the collision was due to the negligence of Staggers in backing into the Street when the Thompson truck was approaching and also to insufficient lights on the Staggers truck and the further fact that the Staggers truck blocked the Street and did not allow sufficient space for the Thompson truck to pass. Evidence was introduced by both sides on all of these disputed questions of fact. We think the jury might have returned a verdict for either party on the question of liability, or it might have apportioned the amount of damage in proportion to the negligence of each. It returned a verdict for the total damage proved by Staggers. However, no contributory negligence instruction was requested by Thompson. Since the evidence was conflicting and would have supported a verdict either way, we think this was peculiarly a case for the jury on the facts, and we cannot disturb its finding.
As one ground for a motion for a new trial Thompson set up newly discovered evidence. The motion was supported by affidavits of Mr. E.P. Varnon and Mr. C.D. Adair. These affidavits disclose that the testimony of these parties, if introduced, would have related to the character of lights on the Staggers truck, the distance of the Thompson truck from the point of collision when the Staggers truck backed into the Street, and to the distance, or space, left by the Staggers truck for passage by the Thompson truck. In other words, such evidence would have been only cumulative, or would have tended to contradict what other witnesses testified, on these questions. "Newly discovered evidence which is merely cumulative, or which simply tends to impeach one or more witnesses, is not ground for new trial; and evidence of the same kind as that already given, to the same point, is cumulative, and not merely corroborative." Redmond v. Marshall, 162 Miss. 359, 137 So. 733, 734; Louisville, N.O. T.R. Co. v. Crayton, 69 Miss. 152, 12 So. 271.
Thompson, through his able counsel, has raised other questions on this appeal. We have thoroughly examined all of them, but find no reversible error, if error at all, in this record.
Sydney Smith, C.J., did not participate in this decision.