Summary
In Arnold v. Reece, 229 Miss. 862, 92 So.2d 237 (1957), a similar contention as that in the case sub judice was presented to the Court.
Summary of this case from Todd v. TurnbullOpinion
No. 40312.
January 21, 1957.
1. Motor vehicles — head-on collision — negligence questions submitted to jury on conflicting evidence.
In action for personal injuries and damages to plaintiff's automobile as result of head-on collision with defendant's truck driven by his codefendant servant, question whether absence of certain lights on truck contributed to cause collision and whether plaintiff or defendant truck driver drove into wrong traffic lane were properly submitted to jury on conflicting evidence.
2. Negligence — ordinarily, question for jury — when question for determination of Trial Judge.
Ordinarily, questions of negligence are for determination by jury, unless act causing injury complained of is not in dispute or conclusively appears from evidence and no inference except that of negligence or no negligence can be justly drawn from evidence, in which event question is for determination of Trial Judge. Sec. 1455, Code 1942.
3. Instructions — negligence — instruction may properly assume facts established by testimony regardless of whether it prejudices jurors against defendant.
Instruction that uncontradicted proof showed that truck was not equipped with clearance and side marker lights and reflectors required by law, that such failure to comply with statute was negligence of defendants, and that jury must find for plaintiff, if they believed from a preponderance of proof that such negligence proximately contributed to collision, was proper as assuming facts established by testimony and correctly stating legal rule, regardless of whether it prejudiced jurors against defendants.
4. Trial — instructions — facts established by evidence may be properly assumed in instruction.
Facts established by evidence may properly be assumed in instruction to jury.
5. Evidence — competent and relevant facts not incompetent because they may produce strong reactions by jury for or against litigant.
Evidence of competent, relevant facts is not incompetent because they may produce strong reactions by jury for or against party to litigation.
6. Motor vehicles — evidence — admission of State Highway Patrolman's testimony as to presence of tire tracks, on Monday after collision Saturday night, leading from point of collision — not error.
In such case, admission of State Highway Patrolman's testimony, on cross-examination by plaintiff's counsel, that on Monday after Saturday night when accident happened, witness saw heavy tracks leading from point of impact onto shoulder of road and that if truck's right dual wheels were off highway at place of contact, they would have not have lined up with such tracks, over objection that conditions on Monday were not same as immediately after accident, was not error, in view of latitude allowed counsel on cross-examination, witness' description of change occurring between Saturday night and Monday, and testimony that such tracks existed on both occasions.
7. Witnesses — objection to improper cross-examination of plaintiff seeking to show plaintiff was too drunk to drive — properly excluded.
Trial Court properly sustained plaintiff's objection to question asked plaintiff on cross-examination by defendant's counsel as to whether a passenger in automobile asked plaintiff to let such passenger drive because plaintiff was too drunk to drive, in view of plaintiff's denial that passenger made such statement, fact that he was not a witness, and incompetency of statement if its purpose was to establish that plaintiff was drinking.
Headnotes as approved by Roberds, P.J.
APPEAL from the Circuit Court of Prentiss County; RAYMOND T. JARVIS, Judge.
Cunningham Cunningham, Booneville, for appellants.
I. It was the duty of the trial court to grant a peremptory instruction for the defendants for the want of any intelligible or believable evidence on behalf of the plaintiff. Teche Lines, Inc. v. Bounds, 182 Miss. 638, 170 So. 747; Yazoo Miss. Valley R.R. Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80.
II. Erroneous instructions unsupported by the evidence. New Orleans R.R. Co. v. Miles, 197 Miss. 846, 20 So.2d 657; Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Jones v. Dixie Greyhound Lines, Inc., 211 Miss. 34, 50 So.2d 902; McBroom v. State, 217 Miss. 338, 64 So.2d 144; Metropolitan Life Ins. Co. v. Evans, 183 Miss. 859, 184 So. 426; Simonton v. Moore, 204 Miss. 760, 38 So.2d 94; 53 Am. Jur., Trial, Secs. 573-579; 88 C.J.S., Trial, Secs. 379-382.
III. The instructions were argumentative. Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764; Gulf M. O.R.R. Co. v. Wedley, 193 Miss. 59, 8 So.2d 349; Metropolitan Life Ins. Co. v. Evans, supra; Potera v. City of Brookhaven, 55 Miss. 774, 49 So. 617; Anno. 144 A.L.R., 930; 53 Am. Jur., Trial, Sec. 552; 88 C.J.S., Trial, Sec. 336.
IV. The Court erred in overruling the defendants' motion for a new trial. Columbus Greenville R.R. Co. v. Buford, 150 Miss. 832, 116 So. 817; Newton v. Homochitto Lbr. Co., 162 Miss. 20, 138 So. 564; White v. McCoy, (Miss.), 7 So.2d 886.
V. It was error for trial court to allow the witness Boren to testify unwillingly on cross-examination about some tire tracks and some demonstrations made by him for the reason that such tire tracks could not possibly be identified on Monday following the accident on Saturday night, and Boren would not express an opinion that such tracks were made by defendants' truck. Wallace v. Billups, 203 Miss. 853, 33 So.2d 819.
VI. The court's action was error in refusing to allow the defendants' attorney to cross-examine the plaintiff as to whether or not he and his cousin, Jodie, sitting by his side, were not in a controversy about who should drive, Jodie saying to him, "Let me drive, you're too drunk to drive". Gulf M. O.R.R. Co. v. Stinson, 74 Miss. 453, 21 So. 14; Pruitt v. State, 156 Miss. 731, 126 So. 824. Donald Franks, Booneville, for appellees.
I. In an action at law based on negligence, the question of negligence vel non is for the determination of the jury, unless the doing of the act which caused the injury complained of is not in dispute or conclusively appears from the evidence, and no inference except that of negligence or of no negligence can be justly drawn therefrom, in which event the question is for the determination of the trial judge. American Creosote Works of La. v. Harp, 215 Miss. 5, 60 So.2d 514; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; Davidson v. McIntyre, 202 Miss. 325, 32 So.2d 150; Farish v. Canton Flying Services, Inc., 214 Miss. 370, 58 So.2d 915; Kirkpatrick v. Love, 220 Miss. 174, 70 So.2d 321; Long v. Magnolia Hotel Co., 227 Miss. 625, 86 So.2d 493; Magers v. Okolona, Houston Calhoun City R. Co., 174 Miss. 860, 165 So. 416; Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 1 So.2d 242; White's Lbr. Supply Co. v. Collins, 186 Miss. 659, 192 So. 312; Secs. 1455, 1742, 8229-02, 8229-03 (b), 8265, Code 1942; 88 C.J.S., Sec. 295 (a), p. 805; Vol. I, Alexander's Mississippi Jury Instructions, Sec. 740 p. 18.
About seven thirty o'clock on the night of October 2, 1954, there was a collision between a Ford passenger automobile and a motor truck on U.S. Highway 45 near the Village of Frankstown in Prentiss County, Mississippi. The automobile was traveling south and the truck was traveling north. The automobile was being driven by William Reece, a minor, and the truck by M.C. Saylors, as the servant of J.A. Arnold, the owner of the truck. Both vehicles were damaged by the collision and Reece suffered very serious personal injuries. Reece sued Arnold and Saylors for damages resulting to him from the personal injuries and damages to his automobile. Reece recovered a jury verdict and judgment for the sum of twenty thousand dollars. Arnold and Saylors appeal. No question is raised as to the amount of the verdict. There were three persons in the automobile, and two persons and between six and seven tons of cotton seed in the truck.
Appellants requested, but were refused, a peremptory instruction. They say the instruction should have been granted. The declaration grounded liability in charges that the truck was insufficiently lighted and that, as the two vehicles approached, the driver of the truck negligently drove it into the west lane of the road, these facts combining to cause the collision. A number of witnesses testified that these were the facts. On the other hand, appellants and some of their witnesses testified that the truck was not driven into the west lane but that Reece drove his automobile into the east lane, thereby causing the accident. However, no witness for appellants testified that the truck was lighted according to the requirements of the law. Some of them said, however, that the absence of certain lights could not have brought about the accident. Witnesses for Reece said the absence of such lights on the truck did contribute to causing the accident. (Hn 1) Whether the absence of lights contributed to bring about the collision, and as to which party drove into the wrong lane of the road, were questions submitted to the jury. Under this record this was properly done. (Hn 2) Ordinarily questions of negligence are for determination by the jury. Section 1455, Miss. Code 1942. Many statements of the rule have been made by this Court. In City of Greenville v. Laury, 172 Miss. 118, 159 So. 121, this Court said: "In an action of law based on negligence, the question of negligence vel non is for the determination of the jury, unless the doing of the act which caused the injury complained of is not in dispute or conclusively appears from the evidence, and no inference except that of negligence or of no negligence can be justly drawn therefrom, in which event the question is for the determination of the trial judge."
There is, of course, the related rule that where the verdict is against the great weight of the evidence, this Court may, and in such case should, set aside the verdict and order a new trial. However, that question is not raised here, and would not be sustainable, under the proof, had it been raised. The learned trial judge correctly refused to grant a peremptory to either party.
(Hn 3) The trial court granted Reece the following instruction: "The Court charges the jury for the plaintiff that the uncontradicted proof in this case shows that the truck owned by the defendant, J.A. Arnold, and driven by the defendant Saylors was not equipped with clearance lights and side marker lights and reflectors as required by the laws of Mississippi and that such failure to have the truck equipped as provided by law was negligence on the part of the defendants Arnold and Saylors; and if you believe from a preponderance of the proof in this case that such negligence proximately contributed to the collision and injuries of the plaintiff, it is your sworn duty to find for the plaintiff."
Appellants say the granting of this instruction was error. In granting this instruction the learned trial judge evidently concluded that the facts as assummed in the instruction had been established by the testimony. In this we think he was correct. The instruction then correctly stated the legal rule that failure to comply with the statute was negligence. The only question left was whether such negligence contributed to bringing about the wreck. The jury found it did. The record discloses ample evidence to support that finding. The main argument of appellants is that this instruction had the effect of prejudicing the jurors against appellants. Whether that is true or not we, of course, cannot say, but even so, (Hn 4) the established facts could properly be assumed in an instruction. (Hn 5) Competent, relevant facts are not made incompetent because they may produce strong reactions for or against a party to litigation. (Hn 6) Appellants placed upon the stand a witness by the name of Boren. He was a member of the State Highway Patrol. On direct examination he testified that he and another patrolman went to the scene shortly after the accident occurred. He then said: "According to what I seen apparently the right dual of the truck was on the shoulder of the road shortly before the impact or thereabouts. The left dual was some two feet from the center line or more." Counsel for Reece then proceeded to cross-examine Boren. The accident happened Saturday night. Boren said he went to the scene again Monday morning. He said that he then placed a truck similar to that of appellants in the same position he concluded the Arnold truck occupied as he saw it Saturday night. He then concluded that "* * * the left dual of that truck would have been over the center line if they were the correct marks." The witness was then asked if on Monday morning he saw any indications of tracks or skid marks left by a truck on the shoulder of the road at the "point of impact." At this point counsel for the defendants objected to this testimony. The court said "I don't know what happened between that time." There was no positive ruling on the objection. The witness was then asked by counsel for plaintiff if there was anything on the ground on Monday indicating the tracks had been obliterated, or the glass and dirt had been removed. He replied he couldn't say but he did say he saw a large quantity of cotton seed on the shoulder of the road. He then stated that on Monday he saw heavy tracks leading from the point of impact onto the shoulder of the road, and that using these tracks as a guide he, on Monday, endeavored to place a truck at the point of impact of the two vehicles, and if the right dual wheels of the Arnold truck had been off the highway at the place of contact, they would not have lined up with the tracks leading off the shoulder. Defendant objected to this answer and the question which elicited it. His objection is that the conditions on Monday were not the same as they were Saturday night immediately after the wreck. The objection was overruled. He complains of that action on this appeal. We do not think the objection well taken. This witness was on cross-examination and a proper range of latitude should have been, and was, allowed counsel to cross-examine him as long as such inquiry was pertinent to the material facts, without unnecessary repetition. Besides, Boren described the change which had occurred from Saturday night to Monday. In addition to that the important signs were the tracks, and, as we understand the testimony, these tracks existed on both occasions. We cannot see error in this contention.
(Hn 7) Able counsel for appellants was limited by the court in his cross-examination of appellee, as hereinafter shown, and he says that was reversible error. The question arises under these circumstances: Reece, the plaintiff, took the stand. In the automobile with him when the accident happened were Jodie Reece, a cousin, and Jimmie Reece, the father of plaintiff. Jodie Reece had resided in Texas for about a year before the trial was had. He did not testify. In the absence of the jury, counsel for appellants asked William Reece if Jodie, shortly before the accident, did not "beg and plead" with plaintiff to let him, Jodie, drive, because plaintiff was too drunk to be driving. The witness denied Jodie said that. Plaintiff objected to that cross-examination. The court sustained the objection. Appellants complain of that action. We think the action of the court was proper. In the first place the witness said no such statement was made. No one contradicted that. Jodie Reece was not a witness and was not available to affirm or deny the statement. The circumstances could not be used as a basis for cross-examination of Jodie Reece. In the second place, if the purpose was to establish as a fact that William Reece was drinking, it was incompetent, being merely oral proof of what someone, not a witness, had said. And in the third place, looking at the situation before us as a completed trial, the question of whether or not William Reece was drinking to the extent that it affected his ability to drive the automobile, was evidently considered by the jurors, who, having returned a verdict for Reece, presumably found that he was not.
We have examined the other questions raised by appellants and find no reversible error.
Affirmed.
Hall, Lee, Kyle and Holmes, JJ., concur.