Opinion
No. 32009.
February 10, 1936.
1. TRIAL.
Instruction that plaintiff must make out her case by clear preponderance of evidence held not erroneous, since term "clear" is mere surplusage.
2. MUNICIPAL CORPORATIONS.
Instruction that, if great majority of people using street under same circumstances as plaintiff did so without being injured, such street as matter of law would be reasonably safe, held erroneous.
APPEAL from the circuit court of Lauderdale county. HON. ARTHUR G. BUSBY, Judge.
Graham Graham, of Meridian, for appellant.
The court charged in an instruction that if the great majority of people using the street did so without being injured, then the street, as a matter of law, would be reasonably safe. The court also charged in the same instruction that although the jury may believe that other people using the street under the same circumstances as appellant, were subject to inconvenience, in the premises, that the street as a matter of law would be reasonably safe, and we submit that this test is unreasonable and unsound as the public has a right to expect a municipality to maintain its streets in such condition as could be traveled without inconvenience, except temporary inconvenience due to repairs. We submit that all of these tests were unreasonable and unsound and did not make it easy for the jury to decide the issue of negligence, as they were told in this instruction by the court.
We submit further that the instruction covered in the fourth assignment of error was erroneous and misleading on account of it being vague and indefinite and prejudicial to the rights of appellant under the law, which only places the burden on her of proving her case by a preponderance of the evidence, while this instruction charged the jury that the appellant had to prove her case by clear evidence, and charging the jury that they must believe from a clear preponderance of the evidence, which rule applies, as we understand the law, only where fraud is charged in a civil suit, and as there was no element of fraud involved, this instruction placed a greater burden upon appellant than is required by law.
The city was charged with the degree of care in inspection as the size of the municipality involved demands.
Dow v. Town of D'Lo, 152 So. 474; McComb City v. Hayman, 87 So. 11; Meridian v. Harvey, 147 So. 302; Vicksburg v. Scott, 151 So. 914; Y. M.V.R.R. Co. v. Pittman, 169 Miss. 667; Columbus Greenville Ry. v. Lee, 149 Miss. 543; Y. M.V.R.R. Co. v. Beazley, 158 Miss. 370; St. Louis, S.F.R.R. Co. v. Nichols, 161 Miss. 795; Gulf Ship Island R.R. Co. v. Simmons, 150 Miss. 506.
Howard Westbrook, of Meridian, for appellee.
Not only is the verdict in line with the overwhelming preponderance of the evidence, but also the inevitable conclusion of the court and jury could have been no other.
This court has held that the findings of the jury are conclusive when supported by reasonable and substantial evidence.
McLemore McArthur v. Rogers, 152 So. 883; Yazoo M.V.R. Co. v. Pittman, 153 Miss. 382; Miss. Power Light Co. v. Smith, 153 So. 376; Montgomery Ward Co. v. Hutchins, 159 Miss. 862; Goodyear Yellow Pine Co. v. Anderson, 157 So. 700; Miss. Central R. Co. v. Roberts, 160 So. 604.
This court has repeatedly held that the only measure of duty on the part of a municipality in the maintenance of its streets is to use ordinary care to keep them in a reasonably safe condition for the use of persons using ordinary care and prudence for their own safety.
Meridian v. Crook, 109 Miss. 712, 69 So. 182; City of Natchez v. Cranfield, 124 So. 656; McComb City v. Hayman, 87 So. 11; Greenville v. Laury, 159 So. 121; Millstead v. City of New Orleans, 146 So. 492.
The instruction complained of simply states in another form the old announcement of reasonably safe streets for reasonably safe persons.
The principle objection to one instruction is the use of the language "from a clear preponderance of the evidence." In the case of Choate v. Pierce, 126 Miss. 209, 88 So. 672, the Mississippi Supreme Court in passing upon an instruction where the word "clear" had been used in connection with "preponderance of evidence" said: "In the opinion of the court clear preponderance of the evidence means simply the preponderance of the evidence." Accordingly, there is no error; or, if technically, it is harmless error.
Argued orally by S.M. Graham, for appellant, and by Howard Westbrook, for appellee.
On the former appeal in this case it was held that a peremptory instruction for the defendant was improper. Crawford v. City of Meridian, 154 So. 888. On the second trial, the jury returned a verdict for the defendant. We are required, therefore, to examine the instructions granted at the request of defendant, and assigned as error.
Several of these instructions charged the jury that the plaintiff must make out her case by a clear preponderance of the evidence, whereas the law in such a case is that the burden on the plaintiff is that she shall prove her case by a preponderance of the evidence. The weight of authority in other states is to the effect that such instructions are erroneous and that instructions, particularly in tort cases, should use no words or terms which might be construed by jurors, or some of them, to require a greater weight or degree of proof than the ordinary preponderance of the evidence. See 64 C.J., p. 721. In this state it has been ruled, however, in Choate v. Pierce, 126 Miss. 209, 220, 88 So. 627, 629, that such an instruction "means simply the preponderance of the evidence," or, in other words, that the term "clear" is mere surplusage, from which it follows that if trial judges should deem it proper to strike out the word "clear" in requested instructions in cases such as this, in order to avoid the chance that some members of a jury might be misled by it, they will be within their right and authority in so doing.
One of the instructions granted at the request of the defendant reads as follows: "The court instructs the jury for the defendant that what a reasonably safe street is, might in some instances be hard to determine; yet if you believe from the evidence that the street in question did not present a hazard to each and every person using it, under circumstances and conditions as plaintiff, and, that a great majority of the people using the street did so without being injured, although you may believe that in so using said street they were subjected to inconveniences, then the street as a matter of law would be reasonably safe and it would be your duty to return a verdict for the defendant."
The quoted instruction is obviously erroneous and in substantial respects. If it were to be laid down in cases of alleged negligence in regard to streets, and which upon similar reasoning could be urged as applicable to the furnishing and maintenance of ways, means, appliances, tools, and places to work, that a test of reasonable safety is whether a great majority of users made the use without being injured, then practically all personal injury cases arising out of such situations would have to be thrown out of court.
It is said in defense of the instruction that it was literally copied from the opinion of the court in the Louisiana case, Millstead v. City of New Orleans (La. App.), 146 So. 492, 493. Leaving aside that the cited case is from another jurisdiction, we would caution counsel in all cases against copying in instructions that portion of any opinion which belongs to the discussion part of the opinion, as was done here. Every full opinion of an appellate court may be said to contain three features or parts: (1) A succinct statement of the salient facts, when and so far as necessary to an understanding of what is decided; (2) an adequate reference to, or statement of, the governing principles of the law applicable to the case; and (3) a discussion or argument which will disclose the course of reasoning by which the stated principles are made applicable and are applied to the particular facts.
We have often stated, as, for instance, in Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 82, 145 So. 726, and that is the general opinion everywhere, that discussion is not decision; and while the discussion or reasoning employed in one case may be of such power in persuasive force as to cause the court in a subsequent case to follow it as completely as if decision, nevertheless it is seldom safe to use the discussion part of any opinion in drawing instructions to be submitted to the jury, because it is likely to encounter the objection, among others, that it is argumentative. See Harper v. State, 16 Ala. App. 153, 75 So. 829.
Reversed and remanded.