Opinion
No. 41822.
April 17, 1961.
1. Motor vehicles — negligence — damages — evidence presented issue for jury both on question of liability and extent of damages sustained.
Evidence presented issue for jury both on question of liability and extent of damages sustained by seven-year-old boy who was out in the open on a route along public thoroughfare used by children and others when he was struck by automobile driven by defendant, who testified that he did not know why he did not see the child, that it was about dusk and that he had not yet turned on his lights. Sec. 1536, Code 1942.
Headnote as approved by McGehee, C.J.
APPEAL from the Circuit Court of Jackson County; LESLIE B. GRANT, J.
Walton L. Nixon, Jr., Biloxi; Donald W. Cumbest, Pascagoula, for appellant.
I. The trial court erred in ordering a remittitur in that the verdict of the jury was supported by the evidence and was not excessive by reason of the extent, nature and duration of the injuries of the appellant. American Creosote Works v. Smith, 233 Miss. 892, 103 So.2d 861; Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 740; Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628; Dixon v. Breland, 192 Miss. 335, 6 So.2d 122; 4-County Elec. Power Assn. v. Clardy, 221 Miss. 403, 73 So.2d 144; Grice v. Central Elec. Power Assn., 230 Miss. 437, 92 So.2d 837; J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779; Mississippi Cent. R. Co. v. Hardy, 88 Miss. 732, 41 So. 505; Mississippi P. L. Co. v. McCormick, 176 Miss. 337, 166 So. 534; Myrick v. Holifield, 240 Miss. 106, 126 So.2d 508; Naylor, Admx. v. Isthemian Steamship Co., 94 F. Supp. 422, 187 F.2d 538; Ness Creameries v. Barthes, 170 Miss. 865, 155 So. 222; Pickwick Greyhound Lines v. Silver, 155 Miss. 765, 125 So. 340; Randall v. Skinner, 187 Miss. 602, 192 So. 341; Sears, Roebuck Co. v. Burke, 208 Miss. 306, 44 So.2d 448; Yazoo M.V.R. Co. v. Grant, 86 Miss. 565, 38 So. 502.
W.E. Belt, Pascagoula; M.M. Roberts, Hattiesburg, for appellee.
I. The amount of the verdict was so excessive as to require conclusion that the jury did not understand or that there were those on the jury with passion and prejudice on the side of the plaintiff and against the defendant. American Creosote Works v. Smith, 233 Miss. 892, 103 So.2d 861; Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628; Dixon v. Breland, 192 Miss. 335, 6 So.2d 122; Easterling v. J.A. Jones Constr. Co. (La.), 115 So.2d 888; Fourchea v. Maloney Trucking Storage, Inc. (La.), 88 So.2d 82; 4-County Elec. Power Assn. v. Clardy, 221 Miss. 403, 73 So.2d 144; Francis v. Terminal Railway Assn. (Mo.), 193 S.W.2d 909; Fuller v. Hudson Transport Co., 90 N Y Supp.2d 129; Higgenbotham v. Frazier (La.), 92 So.2d 89; Kincade Lofton v. Stephens (Miss.), 50 So.2d 587; Mississippi P. L. Co. v. McCormick, 175 Miss. 337, 166 So. 534; Pickwick Greyhound Lines v. Silver, 155 Miss. 765, 125 So. 340; Randall v. Skinner, 187 Miss. 602, 192 So. 341; Smith v. Horace Williams Co. (La.), 84 So.2d 223; Windolph v. Harley (La.), 79 So.2d 911; Yellow Bus Line v. Brenner (Tenn.), 213 S.W.2d 626; Sec. 8229-01(a), Code 1942.
II. C.L. Dees was entitled to a judgment as a matter of law. Gordon v. Carr, 226 Miss. 836, 85 So.2d 490; Howell v. Roueche (Ala.), 81 So.2d 297; Morris v. Boleware, 228 Miss. 139, 87 So.2d 246.
III. The trial court gave a number of erroneous instructions to the plaintiff and/or at the request of plaintiff's attorneys. Rawlings v. Royals, 214 Miss. 335, 50 So.2d 820; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50; Sec. 1801, Code 1942.
IV. Scintilla of evidence rule does not apply in Mississippi. Matthews v. Thompson, 231 Miss. 258, 95 So.2d 438; Mississippi City Lines v. Bullock, 194 Miss. 630, 13 So.2d 34; Mutual Benefit Health Acc. Assn. v. Johnson (Miss.), 186 So. 297; New Orleans N.E.R. Co. v. Burge, 191 Miss. 303, 2 So.2d 825; Permenter v. Milner Chevrolet Co., 229 Miss. 385, 91 So.2d 243; Robinson v. Sims, 227 Miss. 375, 86 So.2d 318; Russell v. Mississippi Cent. R. Co., 239 Miss. 741, 125 So.2d 283.
APPELLANT IN REPLY ON CROSS-APPEAL.
88 So.2d 82226 Miss. 83685 So.2d 49081 So.2d 297188 Miss. 393 195 So. 319228 Miss. 13987 So.2d 246
II. Answer to cross-appellant's Point Two to the effect that plaintiff's instructions were erroneously given. Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Williams v. Moses, 234 Miss. 453, 106 So.2d 45; Sec. 8229-01, Code 1942.
CROSS-APPELLANT IN REPLY.
226 Miss. 83685 So.2d 49081 So.2d 297228 Miss. 139 87 So.2d 246
II. Plaintiff's instructions were erroneous. Hollman v. Bennett, 44 Miss. 322; Houston v. Holmes, 202 Miss. 300, 32 So.2d 138; Meaut v. Langlinais, 240 Miss. 242, 126 So.2d 866; Reith v. Ansley, 162 Miss. 886, 140 So. 521; Sanders v. Neely, 197 Miss. 66, 19 So.2d 242; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Williams v. Moses, 234 Miss. 453, 106 So.2d 45; Sec. 1801, Code 1942; 31 Am. Jur., Sec. 95 p. 625; 35 C.J., Sec. 10 pp. 144, 145.
On January 5, 1959, Clifton C. Flurry, a minor approximately seven years of age, was struck and severely injured by the automobile of the appellee, C.L. Dees, who was driving the same in the Village of Van Cleave in Jackson County, Mississippi, while the said little boy was going from his home along the street to a nearby grocery store at nearly 5:30 in the afternoon. Upon the trial of the lawsuit, the little boy, who sued by his mother and next friend, recovered judgment on the verdict of the jury for the sum of $30,900 against the appellee C.L. Dees. The circuit court ordered that a remittitur be entered reducing the said judgment from $30,900 to the sum of $25,000, and that unless said remittitur should be entered a new trial was granted.
The plaintiff Clifton C. Flurry, by his mother and next friend, took a direct appeal to this Court from the action of the Circuit Court of Jackson County in ordering the said remittitur, and the appellee C.L. Dees took a cross-appeal based upon said alleged errors assigned in the admission of evidence and in the giving or refusal of instructions. The cross-appellant also complains a verdict in the sum of $25,000 would be excessive.
In Harper v. Mississippi State Highway Commission, 216 Miss. 321, 326, 62 So.2d 375, 377, this Court said: "Section 1536, Code of 1942, recognizes the right of a trial court to grant as many as two new trials if the facts and circumstances are such as to warrant the court in doing so. And the action of a trial court in setting aside a verdict and granting a new trial will not be disturbed unless there is a manifest abuse of his discretion in so doing." See Long v. Magnolia Hotel Co., 236 Miss. 655, 111 So.2d 645.
(Hn 1) We have carefully examined both the lay and medical testimony in this record, and we have concluded that the jury was warranted in believing, and especially from the undisputed testimony of the three medical witnesses, that the little boy sustained serious and permanent injuries as the result of being run over by the automobile driven by the appellee C.L. Dees, and that a verdict of $25,000 is not so excessive, if excessive at all, as to shock the enlightened conscience of the court or to evince bias, passion or prejudice on the part of the jury.
The Village of Van Cleave, where there are only a few places of business, does not have sidewalks along its public thoroughfare. It is undisputed that children and others are accustomed to walk the route where the little boy was struck by the appellee's automobile, and there was proof that the injured boy was out in the open in front of the appellee's automobile at the time he was run over by the same, and the appellee, who was introduced as an adverse witness, testified that he did not know why he did not see the child before he ran over him. He testified that it was about "dusk, dark", and the witnesses for the plaintiff testified that the lights were already burning in the stores. The lights of the appellee's automobile had not been turned on, but he explained that he intended turning them on as soon as he got to the main thoroughfare, which was about thirty or forty feet ahead of him.
We think that under all of the facts and circumstances the testimony presented an issue peculiarly for the determination of a jury, both on the question of liability and as to the extent of the damages sustained.
We have therefore concluded that the case should be affirmed both on direct and on cross-appeal, and that the appellant, who was the plaintiff below, should be allowed ten days from and after this date to enter the remittitur, as ordered by the Circuit Court, and that otherwise the case will be reversed and remanded for a new trial on the question of damages only.
Affirmed.
Kyle, Ethridge, Gillespie and Jones, JJ., concur.