Opinion
No. 38888.
October 26, 1953.
1. Negligence — where plaintiff contributed to own injury — jury may reduce damages — though no instruction given on comparative negligence.
In action arising out of automobile collision at street intersection where negligence of plaintiff contributed to his injury, jury was justified in reducing the full damages which plaintiff may have suffered on account of such negligence, even though no instruction was requested on comparative negligence.
2. Damages — adequate.
In such action Supreme Court was unable to say from evidence jury was not justified in finding that $500.00 adequately compensated plaintiff for his loss and injury.
3. Motor vehicles — comparative negligence — instructions — opportunity to avoid accident.
In action arising out of automobile collision at street intersection, instructions which in essence instructed jury to find for plaintiff if plaintiff negligently entered intersection and if defendant observed action of plaintiff and had opportunity to avoid accident and nevertheless negligently ran into plaintiff's car, fairly advised jury of law of the case.
4. Motor vehicles — intersection automobile collision — conflicting evidence — cause of accident for jury.
In action arising out of automobile collision at street intersection where evidence was conflicting with respect to cause of accident, that issue was for jury to decide.
Headnotes as approved by McGehee, C.J.
APPEAL from circuit court of Jackson County; L.C. CORBAN, Judge.
Jules A. Schwan and Albert Sidney Johnson, Jr., Biloxi, for appellant.
I. The trial court erred in refusing to award plaintiff-appellant a new trial on the question of damages only. Chapman v. Powers, 150 Miss. 687, 116 So. 609; Coccora v. Vicksburg Light Traction Co., 126 Miss. 713, 89 So. 256; Scott v. Yazoo M.V.R. Co., 103 Miss. 522, 60 So. 215; Whitehead v. Newton Oil Mfg. Co., 105 Miss. 711, 63 So. 219; Lawson v. Sitgraves, 299 Ky. 545, 186 S.W.2d 182, 29 A.L.R. 2d 276-278; Gulf Transport Co. v. Allen, 46 So.2d 436; Wall v. Van Meter, 311 Ky. 198, 223 S.W.2d 734, 20 A.L.R. 2d 272; Ashland Coca-Cola Bottling Co. v. Brady, 252 Ky. 183, 66 S.W.2d 57; Schriewer v. Schworer, 296 Ky. 749, 178 S.W.2d 598; Rose v. Melody Lane, 228 P.2d 854; McLendon v. Floyd, 59 Ga. App. 506, 1 S.E.2d 466; DeMoss v. Brown Cab Co., 218 Iowa 77, 254 N.W. 17; Dolen v. Beatrice Restaurant Co., 137 Neb. 247, 289 N.W. 336; Gilbert v. Lahn, 24 N.J. Misc. 336, 49 A.2d 248; Taylor v. Rounds, Pa. 26 Erie Co. L.J. 51, aff'd 349 Pa. 157, 36 A.2d 817; Sanders v. Brown, 54 Dauph Co. 272; May v. Hahn, 22 Tex. Civ. App. 365, 54 S.W. 416; Greiner v. Turby, (Pa.), 52 Dauph Co. 131.
O.K. Wiesenburg, Pascagoula, for appellees.
I. Appellant's instruction No. 4 was erroneously granted, since in such instruction the appellant invoked Sec. 1454, Code 1942, and instructed the jury that he could recover, notwithstanding his own contributory negligence, but failed to further instruct the jury that under such statute that the jury was to diminish the damages of appellant in proportion to appellant's negligence. Graves v. Johnson, 179 Miss. 465, 176 So. 246; Graves v. Hamilton, 170 So. 360.
II. Appellant's instruction No. 5 was erroneously granted, since this instruction openly invited the jury to return a verdict for the appellant if the defendant was guilty of any negligence, without giving the jury any guide as to what negligence was charged. Meridian City Lines v. Baker, 206 Miss. 58, 39 So.2d 541; Young v. Power, 41 Miss. 197; Baldwin v. McKay, 41 Miss. 358; Southern R. Co. v. Ganong, 99 Miss. 540, 55 So. 355; Yazoo M.V.R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90; Yazoo M.V.R. Co. v. Aultman, 179 Miss. 109, 120, 173 So. 280; McDonough Motor Express v. Spiers, 180 Miss. 78, 176 So. 723, 177 So. 655; Ross v. Louisville N.R. Co., 181 Miss. 795, 181 So. 133, 134; Graham v. Brummett, 182 Miss. 580, 591, 181 So. 721; New Orleans N.E.R. Co. v. Miles, 197 Miss. 846, 20 So.2d 657, 658.
III. Appellant's instruction No. 6 was erroneously granted in that by such instruction the appellant invoked the "sudden emergency" doctrine, which theory was not set out in appellant's declaration and constituted a complete departure from the declaration, and which instruction erroneously authorized the jury to return a verdict for the appellant without regard to his own negligence in creating the emergency. Jones v. Dixie Greyhound Lines, 211 Miss. 34, 50 So.2d 902; Avent v. Tucker, 188 Miss. 207, 194 So. 596; Trewolla v. Garrett, 200 Miss. 563, 27 So.2d 887.
IV. The testimony of the appellant viewed in the light of the testimony of all the witnesses is so incredible as to entitle the city either to a directed verdict, or to a new trial on the ground that the verdict of the jury was against the overwhelming weight of the evidence. Avent v. Tucker, 188 Miss. 207, 194 So. 596; Trewolla v. Garrett, 200 Miss. 563, 27 So.2d 887; Gilliam v. Sykes, 61 So.2d 672.
V. Appellant's direct appeal, under his instructions, is without merit. Avent v. Tucker, 188 Miss. 207, 194 So. 596; Gilliam v. Sykes, 61 So.2d 672.
Appellant's Reply Brief.
I. Answer to appellees' Point I. Southern R. Co. v. Floyd, 99 Miss. 519, 55 So. 287; Fuller v. I.C.R.R. Co., 100 Miss. 705, 56 So. 783; Avent v. Tucker, 188 Miss. 207, 194 So. 596; Miss. Central R.R. Co. v. Mason, 51 Miss. 244; Graves v. Johnson, 179 Miss. 465, 176 So. 246.
II. Answer to appellees' Point II. Southern R. Co. v. Ganong, 99 Miss. 540, 55 So. 355; Y. M.V.R.R. Co. v. Aultman, 179 Miss. 109, 120, 173 So. 280, 281; Ross v. Louisville N.R. Co., 181 Miss. 795, 181 So. 133, 134; Graham v. Brummett, 182 Miss. 580, 181 So. 721; New Orleans N.E.R.R. Co. v. Miles, 197 Miss. 846, 20 So.2d 657, 758.
III. Answer to appellees' Point III. Jones v. Dixie Greyhound Lines, 211 Miss. 34, 50 So.2d 902.
IV. Answer to appellees' Point IV. Avent v. Tucker, 188 Miss. 207, 194 So. 596; Trewolla v. Garrett, 200 Miss. 563, 27 So.2d 887.
V. Answer to appellees' Point V. Gilliam v. Sykes, 61 So.2d 672; Chapman v. Powers, 150 Miss. 687, 116 So. 609.
This suit arose out of a collision between two motor vehicles at a street intersection. Plaintiff and appellant, Catchot, was driving his 1940 Packard from west to east on Calhoun Street in the City of Ocean Springs. A Ford truck owned by the city was being driven from north to south on Washington Avenue. The collision occurred at about one o'clock P.M. on a clear day. There was a stop sign on Calhoun Street, about thirty feet west of the intersection. Washington Avenue was a through street. The testimony for the plaintiff was to the effect that as he approached Washington Avenue he stopped at the stop sign, then proceeded slowly to the intersection, looked in both directions, seeing no vehicle approaching, and proceeded carefully across the intersection; and that when he had proceeded to the east side of the intersection the city truck ran into his car, completely demolishing it and causing him to suffer personal injuries. On the other hand, the testimony for the defendants was to the effect that plaintiff failed to stop his car on approaching the intersection; that when the truck was about 50 feet from the intersection the driver observed the plaintiff's car proceeding easterly on Calhoun Street, and blew his horn and reduced his speed; that as the truck entered the intersection the plaintiff's car also entered from the west side and drove in front of the truck; and that the truck driver veered sharply to the left in an attempt to avoid the collision, but unavoidably struck the plaintiff's car.
There was a verdict and judgment for the plaintiff in the amount of $500. From this judgment the plaintiff appealed, claiming that the damages awarded were inadequate. The defendants filed a cross-appeal in which they contended that certain instructions were erroneously granted to the plaintiff and that the evidence did not support the verdict.
The plaintiff testified on damages that his car was a total loss, that the ceiling price thereon was $465, that his medical and hospital bills amounted to $45 or $50, and that he suffered certain personal injuries, which were temporary in character. (Hn 1) Although no instruction was requested on comparative negligence, it is obvious from the record in this case that this was an instance in which the jury was justified in finding that negligence of the plaintiff contributed to his injury and, therefore, the jury was justified in reducing the full damages which the plaintiff may have suffered on account of such negligence on his part. This proposition is fully supported by Chapman v. Powers, 150 Miss. 687, 116 So. 609; Pounders v. Day, 151 Miss. 436, 118 So. 298, and Gilliam v. Sykes, 216 Miss. 54, 61 So.2d 672. (Hn 2) Furthermore, we are unable to say from the record before us that the jury was not justified in finding that $500 would amount to adequate compensation to the plaintiff for his loss and injury.
On cross-appeal, the main argument is directed to three instructions which were granted to the plaintiff. It is also contended that the defendant should have been allowed a peremptory instruction. Without quoting the three instructions, we find it sufficient to say that they instructed the jury on behalf of the plaintiff that if the jury believed that the plaintiff negligently entered the intersection, but that the defendant observed the action of the plaintiff, had an opportunity to avoid the accident, and nevertheless negligently ran into the plaintiff's car, then the jury should find for the plaintiff and assess his damages at such sum as would compensate him for his injuries and damages. Several objections to these instructions are argued, but these criticisms of the instructions are not, in our opinion, meritorious. (Hn 3) It is our conclusion that the case was submitted to the jury under instructions which fairly advised them of the law of the case.
(Hn 4) This is an instance of conflicting evidence with respect to the cause of an intersection accident, and it was for the jury to decide the issue. We conclude that the case should be affirmed both on direct and on cross-appeal.
Affirmed on direct and on cross-appeal.
Roberds, P.J., and Lee, Kyle, and Arrington, JJ., concur.