Opinion
No. 30096.
September 26, 1932.
1. NEGLIGENCE.
Plaintiff's contributory negligence is defense to action under Louisiana law, and bars his recovery where it was proximate cause of injury, though defendant was also negligent.
2. AUTOMOBILES. Instruction to find for defendant bus company if both bus and plaintiff's automobile skidded toward each other and collided, though plaintiff's automobile was on right side of road, held error.
Such instruction was error because, if plaintiff was on the proper side of the road and running in a prudent manner, and the bus was on its side of the road, but through the negligence of its driver struck plaintiff's automobile, then defendant bus company would be liable, in addition to which instruction did not negative negligence on the part of the bus, or place any hypothesis in it to charge the plaintiff with negligence.
3. TRIAL. Instruction to find for defendant bus company if jury were not satisfied, and unable to determine how collision occurred, held erroneous in not qualifying word "satisfied."
Such instruction was erroneous in not having after the word "satisfied" the qualification "from a preponderance of the evidence," since the jury are not required to be entirely satisfied but only reasonably satisfied by a preponderance of the evidence.
4. AUTOMOBILES. Instruction to find for defendant bus company if plaintiff's automobile had not stopped at right side of road, but was traveling near center of road at time of collision, held erroneous.
Such instruction was erroneous, because the use of the words "near the center" were misleading, because it was not required that plaintiff's automobile should have stopped at the extreme right side of the road, or to have stopped at all, and because the instruction omitted the hypothesis as to where the bus was traveling, and did not properly limit the bus to its side of the road, or to a proper manner of operating.
5. AUTOMOBILES.
For motorist traveling in center of road prior to collision to turn to right and continue on proper side of road is not negligence.
6. AUTOMOBILES.
Giving instruction to find for defendant bus company, if bus and automobile were in center of road when one hundred feet apart, and both turned to right and rear ends collided, and that skidding was immaterial, held improper.
7. TRIAL. Instruction in substance that witnesses in automobile colliding with bus were interested, and witnesses in bus were disinterested, and to consider interest in weighing testimony, held error as comment on evidence ( Code 1930, section 586).
Instruction was in substance that all occupants of the automobile at the time of collision who had sued on account of such collision were interested, and in weighing their testimony jury should take into consideration their interest, and that passengers of bus were disinterested, and, if it reasonably appeared from the passengers' testimony that the bus was on the right-hand side of the center of the road at the time of the collision, then the jury should find for defendant bus company.
8. AUTOMOBILES.
Procedure in suit for automobile collision occurring in another state held governed by the laws of state where relief was sought.
APPEAL from circuit court of Adams county. HON. R.L. CORBAN, Judge.
Engle Laub, of Natchez, for appellant.
The court gave the following instructions to the defendant in this case which were erroneous:
The court instructs the jury that if you believe that it is probably true that both the bus and the Buick were on their right hand side of the road and running at the same rate of speed and as they passed each other on account of the slippery condition of the road, one or both skidded towards the other and they collided, then there can be no recovery and your verdict should be for the defendant.
The court instructs the jury that if from all the evidence in the case you are not satisfied and you are unable to determine just how the collision did occur, then your verdict should be for the defendant.
The court instructs the jury for the defendant in this case that if you believe that by a preponderance of the evidence in this case it is established that the car in which the plaintiff was riding at the time of the collision had not stopped and was not stopped on the extreme right side of the road but was traveling in the highway near the center of the road at the time of the collision between it and the bus of the defendant, then it is you sworn duty under the law to find for the defendant and in such case your verdict should be `We, the jury, find for the defendant."
One of the instructions undertakes to tell the jury, and does tell the jury that if they believed that the Buick car in which the plaintiffs, appellants, were riding had not stopped on the right hand side of the road at the time of the collision but that said car was proceeding at the time of the collision, then they should find for the defendant. The law and the facts nowhere justify this instruction.
It makes no difference whether the Buick car was at a standstill or whether it was moving at the time of the collision. The question to be decided by the jury was through whose negligence had the injury been inflicted. The motion or non-motion of the Buick car here was not an element as to liability. The question was whether the Buick car or the bus was on its proper side of the road, and the court foreclosed this question so far as the jury were concerned by telling them that unless the appellant proved by a preponderance of the evidence that the Buick car had been brought to a standstill before the accident then they must find for the appellee.
It was error to give the following instruction:
The court instructs the jury for the defendant in this case that if you believe that by a preponderance of the evidence in this case it is established that the car in which the plaintiff was riding at the time of the collision had not stopped and was not stopped on the extreme right side of the road, but was traveling on the highway near the center of the road at the time of the collision between it and the bus of the defendant, then it is your sworn duty under the law to find for the defendant and in such case your verdict should be, "We, the jury, find for the defendant."
By the above instruction the jury are told that they must find for the defendant if they believe by a preponderance of the evidence it is established (1) that plaintiff's car at the time of the collision had not stopped or (2) that it must have been stopped on the extreme right side of the road, and that this finding for the defendant must be made even though they believed that the Buick car was traveling in the highway near the center of the road at the time of the collision between it and the bus.
This instruction lays down the proposition to the jury that not only must the Buick car have stopped at the time of the collision in order for the plaintiff to recover, but that it must have been stopped on the extreme right side of the road.
The following instruction is erroneous in its statement of the law, the facts in this case considered.
The court instructs the jury that if you believe that it is probably true that both the bus and the Buick were on their right hand side of the road and running at the same rate of speed and as they passed each other on account of the slippery condition of the road, one or both skidded towards the other and they collided, then there can be no recovery and your verdict should be for the defendant.
This instruction nowhere states that the bus was not being handled or driven in a negligent manner, the condition of the road considered, the size and weight of the bus considered, but simply that if it was running at the same rate of speed as the Buick car and if it was on its right hand side of the road, then if there was skidding of one of them there could be no recovery.
The bus and Buick could be each on its right hand side of the road and running at the same rate of speed as they passed each other, and on account of the slippery condition of the road the bus skidded towards the Buick and there was a collision, still the jury could find a verdict for the plaintiff if they believed that this skidding was brought about through the negligent handling of the bus.
On account of the failure of the insertion of words in the instruction to the effect that the bus was not being driven in a negligent manner, the instruction is erroneous.
The court erred in giving the following instruction:
The court instructs the jury that if you believe from the evidence in this case that at the time of the collision both cars were travelling at about the same rate of speed, and when they were within about one hundred feet of each other they were both in the center of the road, and they both turned to their right; and the front ends of the cars passed each other without colliding and before the rear ends of the cars cleared each other, they collided then there can be no recovery and it is immaterial whether the bus skidded into the Buick or whether the Buick skidded into the bus and your verdict should be
"We, the jury, find for the defendant."
This instruction fails to state that the collision, after the fronts of the two cars had passed, was not brought about through the negligence of the bus driver or through the negligence upon the part of the defendant.
It was for the jury to say whether the passengers in the bus were interested or not interested, and the trial court had no right to instruct the jury to the effect that these passengers were disinterested.
An instruction which assumes a matter of fact is erroneous and should be refused and an instruction should not assume the truth of controverted facts, as this invades the province of the jury.
Godfrey v. Meridian Ry. Lt. Co., 58 So. 534, 101 Miss. 565; McKee v. Munn, 5 So. 616; Beall v. Bullock, 11 So. 720.
Where intersectional automobile collision occurred about dusk and plaintiff's car had no lights does not make him contributorily negligent, if surroundings were well lighted and want of lights did not contribute to collision.
Johnson v. Worley, 3 La. App. 675. Hugh V. Wall, of Brookhaven, and Whittington Brown, of Natchez, for appellee.
The instruction in which the court instructed the jury that if the bus and the Buick car were both running at about the same rate of speed and both skidded and that was the cause of the collision, then there could be no recovery is the rule under the Louisiana law under which the case was being tried. That instruction merely told the jury that if both the plaintiff and the defendant were guilty of negligence under the law under which the case was being tried, then there could be no recovery. This instruction was proper under the Louisiana law.
The instruction which told the jury in substance that if they believed both parties were guilty of negligence, and could not determine whose negligence it was that caused the collision, then there could be no recovery, is proper under the Louisiana law.
Another instruction complained of was along the line of whether or not the car was stopped or running. The theory of the plaintiff was that she was guilty of no negligence whatever and the sole cause of the injury was the operation of the bus and the only way that the plaintiff could get around the law of contributory negligence was to charge that her car was stopped and if the car was not stopped, under the facts in this case, under the Louisiana law she could not recover.
Where evidence given by an equal number of witnesses for the parties litigant, the testimony of those witnesses shown to be disinterested will be given the greatest consideration in determining the true facts going to establish liability for collision between automobiles.
Briede v. Chick, Orleans, No. 9116, La. App.
Where there is a shap conflict in evidence as to manner, in which automobile collision occurred, witnesses whose testimony is corroborated by physical facts surrounding accident will prevail.
Fetter v. Torre, 1 La. App. 766; Travelers Indemnity Company v. Prince, Orleans, No. 8866; Tetter v. Torre, 1 La. App. 766.
When manner in which accident is alleged to have taken place is improbable, it will take but slight preponderance of evidence to justify conclusion that the accident did not occur in manner alleged.
McBride v. New Orleans Public Service, 3 La. App. 474.
Luther A. Whittington, of Natchez, for appellee.
These instructions complained of in which the court instructed the jury that if they believed from the evidence in this case, that the car in which plaintiff was riding had not stopped on the extreme right side of the highway, but was travelling in the highway near the center of the road at the time of the collision, then the jury should find for the defendant were proper.
This instruction follows the case made by plaintiff. All the witnesses who establish any negligence against defendant testified that the Buick car was stopped at the extreme right side of the road, was not in the center of the highway and was not in motion, at the time of the collision. There was the issue of fact; the material issue of fact.
Under the facts in this case, the irreconcilable conflict in evidence negligence could not be determined until the jury had first decided whether the car was or was not moving near the center of the road, was or was not stopped on the extreme right side of the road. As the jury determined this fact, so would negligence of one or the other follow. So would the case of plaintiff be established, or fail for want of proof.
Appellant complains that it was error to instruct the jury that if they could not determine from the evidence just how the collision occurred, then they should find for the defendant; that we submit is without merit. The burden of proof was on the plaintiff to reasonably satisfy by evidence the minds of the jury as to how the collision occurred, so that the jury could determine negligence or not against the defendant.
As to the instruction that where there is a sharp conflict in the evidence as to how the collision occurred, the witnesses whose testimony is corroborated by the physical facts will prevail, announces the law as declared by the Louisiana Supreme Court, the law that governs in this case.
There was no evidence from which the jury could fairly or reasonably infer that the passengers who testified for the defendant were interested in the outcome of the litigation; their disinterestedness is undisputed.
Argued orally by S.B. Laub, for appellant, and by Hugh V. Wall, for appellee.
The facts in this case are the same as in the cases of Teche Lines v. Pasavanti (Miss.), 140 So. 677, and Teche Lines v. Heatherly (Miss.), 140 So. 680. All of these suits arose out of the same transaction, the plaintiffs being different persons traveling in the same car involved in a collision with a bus operated by the appellee, Teche Lines, Inc.
In the trial of the case at bar the jury returned a verdict for the defendant, which would be affirmed but for errors in instructions given the defendant in the court below.
In Louisiana contributory negligence of the plaintiff is a defence to the action, and bars the plaintiff if the jury find that the plaintiff was negligent, and that such negligence was a proximate cause of the injury, although the defendant may also have been negligent.
The defendant obtained the following instructions:
"The court instructs the jury that if you believe that it is probably true that both the bus and the Buick were on their right hand side of the road and running at the same rate of speed, and as they passed each other on account of the slippery condition of the road, one or both skidded towards the other and they collided, then there can be no recovery, and your verdict should be for the defendant."
"The court instructs the jury that if from all the evidence in the case you are not satisfied and you are unable to determine just how the collision did occur, then your verdict should be for the defendant."
"The court instructs the jury for the defendant in this case that if you believe that by a preponderance of the evidence in this case it is established that the car in which the plaintiff was riding at the time of the collision had not stopped and was not stopped on the extreme right side of the road, and was traveling in the highway near the center of the road at the time of the collision between it and the bus of the defendant, then it is your sworn duty under the law to find for the defendant and in such case your verdict should be, `We, the jury, find for the defendant.'"
It will be noted that the first of these instructions above quoted instructs the jury that they are to return a verdict for the defendant if they believe that both the bus and the Buck skidded towards each other and collided, although the plaintiff's car may have been on the right-hand side of the road at the time of the collision and was running in a prudent manner. This is error, because, if the plaintiff was on the proper side of the road and running in a prudent manner, and the bus was on its side of the road, but, through negligence of its driver, was not under control and struck the car of the plaintiff while the plaintiff was on the proper side of the road and was guilty of no negligence, and if the bus was guilty of negligence, then the defendant would be liable. The instruction does not negative negligence on the part of the bus; nor does it place any hypothesis in it to charge the plaintiff with negligence. There might be a difference in operating an ordinary passenger car at a high rate of speed, and operating a bus at the same rate; a bus, being larger and heavier, might not be so easy of control, and it might be negligence to operate a bus at a high rate of speed over a certain slippery road, while operating a passenger car at the same rate would be safe. If both cars had skidded, and the collision was caused by the skidding of both cars, it would present a different situation from the collision being caused by the skidding of only one car.
The second instruction complained of quoted above is only erroneous in not having after the word "satisfied" a qualification, viz. "from a preponderance of the evidence." The jury are not required to be entirely satisfied, but only reasonably satisfied by a preponderance of the evidence. Of course, if the jury were unable to determine from the evidence how the collision did occur, then the plaintiff would not have met the burden imposed to show by a preponderance of the evidence the negligence on the part of the defendant.
The third instruction quoted above is erroneous because it is not required that the plaintiff's car should have stopped at the extreme right side of the road. It was not required, in fact, to have stopped at all, and, if it was on the proper side of the road, and was being operated in a proper manner, and if the driver was guilty of no negligence, there would be no fault on the part of the plaintiff barring her right to recover if the defendant was negligent. This instruction is also erroneous, in that it does not properly limit the bus to its side of the road, or to a proper manner of operating. It is not negligent for a car, although traveling in the center of the road prior to the collision, to turn to the right side and continue its reasonable operation on the proper side of the road. Under this instruction, the plaintiff could not recover, even though traveling in a proper and careful manner upon its own side of the highway, if, prior to the collision, it had been in the center of the highway, and had not driven to the extreme right side of the highway and come to a full stop.
It is also complained that the court erred in giving the following instruction: "The court instructs the jury for the defendant in this case that if you believe that by a preponderance of the evidence in this case it is established, that the car in which the plaintiff was riding at the time of the collision had not stopped and was not stopped on the extreme right side of the road, but was traveling in the highway near the center of the road at the time of the collision between it and the bus of the defendant, then it is your sworn duty, under the law, to find for the defendant, and in such case your verdict should be, `We, the jury, find for the defendant.'"
This instruction is not properly drawn. It carries with it the same idea that the plaintiff's car should have stopped at the extreme right side of the road as a condition of recovery. It would not necessarily be negligence to have traveled near the center of the road at the time of the collision. The words "near the center" are certainly misleading. This instruction also omits the hypothesis as to where the bus was traveling and how the collision occurred. Cars may safely pass each other and each being near the center of the highway on the proper side of the road. Just how near the center of the road the car was traveling was not defined by the instruction, and the giving of the instruction was improper.
It is also complained that the court erred in giving the defendant the following instruction: "The court instructs the jury that if you believe from the evidence in this case that at the time of the collision, both cars were traveling at about the same rate of speed, and when they were within about one hundred feet of each other they were both in the center of the road, and they both turned to their right; and the front ends of the cars passed each other without colliding, and before the rear ends of the cars cleared each other, they collided, then there can be no recovery and it is immaterial whether the bus skidded into the Buick or whether the Buick skidded into the bus, and your verdict should be, `We, the jury, find for the defendant.'"
This instruction probably was intended to tell the jury that it was negligence on the part of both parties to travel in the center of the road when they were within one hundred feet of each other, owing to the slippery condition of the road. If, as stated in the instruction, both cars attempted to turn when within one hundred feet of each other, and the front ends of the cars passed each other, and before the rear ends cleared, the cars collided, there can be no recovery, although the bus skidded into the Buick through negligent operation. It is certainly susceptible to that construction. If both cars were negligent, there can be no recovery under the Louisiana law, but it would not be negligence per se for the plaintiff's car to have turned out when within one hundred feet of the bus, and on its own side of the road, if the plaintiff's car was free from blame, and the defendant was negligent in not having proper control of the bus.
It is next complained that the court erred in giving the defendant the following instruction: "The court instructs the jury, that all of the occupants of the Buick car at the time of the collision in question who have sued on account of such collisions, are interested, and in weighing their testimony, you should take into consideration their interest, and on the other hand the passengers of the bus are disinterested, and if it reasonably appears from the testimony of the passengers on the bus at the time of the collision that the bus was on the right hand side of the center of the road at the time of the collision, then your verdict should be for the defendant."
This instruction is in plain violation of section 586, Code 1930, which prohibits the judge from summing up the testimony or commenting on same, or charging the jury as to its weight. The judge clearly could not tell the jury that some witnesses were interested, and others disinterested, and that they should except the evidence of either set of witnesses. It was clearly a comment on the weight of the evidence to say that some witnesses were interested and others disinterested. Whatever may be the rule in Louisiana upon this subject, the cause must be tried, as to procedure, under the laws of Mississippi. Counsel seem to have been impressed with the idea that, because the action originated in Louisiana, and the right of action was controlled by Louisiana law, Louisiana procedure must be applied by a Mississippi court. On page 483, 12 C.J., it is said that: "The lex fori, or law of the jurisdiction in which relief is sought, controls as to all matters pertaining to remedial, as distinguished from substantive rights, and the only uncertainty which may arise concerning this rule must result from conflicting views as to what matters fall within one or the other of such classes of rights, or where the same claim may, according to the surrounding conditions, fall into either class."
See, also, 5 R.C.L., p. 1036, section 127, where it is said: "Where an action is brought in one jurisdiction for a tort committed in another, the general rule is that all matters relating to the right of action are governed by the lex loci delicti, and all matters relating purely to the remedy by the lex fori." See authorities in note 18 to this text.
In Goodrich on Conflict of Laws, p. 157, it is said: "A distinction is made by the courts between those matters which relate to substance, sometimes called matters of right, and those which relate to procedure or matters of remedy. The latter are governed by the law of the forum, regardless of where the transactions occurred out of which the claim now in litigation arose."
For the giving of these instructions, the judgment must be reversed, and the cause remanded for a new trial.
Reversed and remanded.