Opinion
No. 42572.
February 18, 1963.
1. Motor vehicles — intersectional collision — verdict for defendants — sufficiency of evidence.
Verdict for construction company, truck owner whom company employed, and company's flagman stationed at intersection at which motorist collided with owner's truck was not against overwhelming weight of evidence, which included testimony that motorist was traveling at 65 to 70 miles per hour and was not keeping proper lookout. Sec. 1455, Code 1942.
2. Juries — credibility of witnesses peculiarly a matter for jury.
Credibility of a defendant's testimony was peculiarly a matter for jury. Sec. 1455, Code 1942.
3. Appeal — verdict — set aside, only when — jury, judge of weight and worth of evidence.
Jury is judge of weight and worth of evidence, and unless verdict is manifestly erroneous, or it is apparent that jury was actuated by passion, prejudice, or corruption, verdict will be sustained. Sec. 1455, Code 1942.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Lee County RAYMOND T. JARVIS, Judge.
Adams, Long Adams, Tupelo; Cumbest Cumbest, Pascagoula, for appellant.
I. Cited and discussed the following authorities: Avent v. Tucker, 188 Miss. 207, 194 So. 596; Baird v. Harrington, 202 Miss. 112, 30 So.2d 82; Cauthen v. Brewer, 234 Miss. 676, 107 So.2d 361; Dame v. Estes, 233 Miss. 315, 101 So.2d 644; Davidian v. Wendell (Miss.), 37 So.2d 570; Flowers v. Stringer, 152 Miss. 897, 120 So. 198; Meo v. Miller, 227 Miss. 11, 85 So.2d 568; New Orleans N.E.R. Co. v. Miles, 197 Miss. 846, 20 So.2d 657; Pullin v. Nabors, 240 Miss. 864, 128 So.2d 122; Trewolla v. Garrett, 200 Miss. 563, 27 So.2d 887; Walton v. Owens, 244 F.2d 383; Wells v. Bennett, 229 Miss. 135, 90 So.2d 199.
B.F. Worsham, Stovall Price, Corinth, for appellees, Charles Murray Malone and Worsham Brothers Construction Company.
I. Cited and discussed the following authorities: Brotherhood of Railroad Trainmen v. Walker, 165 Miss. 698, 147 So. 655; Coca Cola Bottling Works of Greenwood v. Hand, 186 Miss. 893, 191 So. 674; Forbes v. Durant, 209 Miss. 246, 46 So.2d 551; Gough v. Harrington, 163 Miss. 393, 141 So. 280; Hill v. Columbus Ice Cream Creamery Co., 230 Miss. 634, 93 So.2d 634; Jones v. Carter, 192 Miss. 603, 7 So.2d 519; Jones v. Carter, 195 Miss. 182, 13 So.2d 623; Kansas City, M. B.R. Co. v. Cantrell, 70 Miss. 329, 12 So. 344; Kelly v. State, 239 Miss. 705, 124 So.2d 844; Myers v. Tims, 161 Miss. 872, 138 So. 578; New Orleans N.E.R. Co. v. Lewis, 214 Miss. 163, 58 So.2d 486; Robertson v. Welch, 242 Miss. 110, 134 So.2d 491; Schumpert v. Watson, 241 Miss. 199, 129 So.2d 627; Shearron v. Shearron, 219 Miss. 27, 68 So.2d 71; Stewart v. Madden, 233 Miss. 206, 101 So.2d 353; Teche Lines v. Bateman, 162 Miss. 404, 139 So. 159; Tri-State Transit Co. v. Moore, 188 Miss. 722, 196 So. 231; Trotter v. Staggers, 201 Miss. 9, 28 So.2d 237; Wheat v. Teche Lines, 181 Miss. 408, 179 So. 553; White's Lumber Supply Co. v. Collins, 186 Miss. 659, 192 So. 312; Williams v. Moses, 234 Miss. 453, 106 So.2d 45; Yazoo M.R. Co. v. Pittman, 169 Miss. 667, 153 So. 382; Secs. 1455, 8137, 8176, 8197, Code 1942; Anno. 74 A.L.R. 2d 246.
Mitchell, McNutt Bush, Tupelo, for appellee, J. Barney Davis.
I. Cited and discussed the following authorities: Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Cox v. Dempsey, 177 Miss. 678, 171 So. 788; Fishman v. Silva, 116 Cal.App. 1, 2 P.2d 473; Flowers v. Stringer, 152 Miss. 897, 120 So. 198; Gow Co. Inc. v. Hunter, 175 Miss. 896, 168 So. 264; Harris v. McCuiston, 217 Miss. 601, 64 So.2d 692; Ivey v. Sconier, 234 Miss. 390, 106 So.2d 399; Jones v. Carter, 192 Miss. 603, 7 So.2d 519; New Orleans N.E.R. Co. v. Miles, 197 Miss. 846, 20 So.2d 657; Trotter v. Staggers, 201 Miss. 9, 28 So.2d 237; White's Lumber Supply Co. v. Collins, 186 Miss. 659, 192 So. 312; Secs. 1455, 8137(f), 8154, Code 1942; 2 Alexander, Instructions, 156; 9C Blashfield, Cyclopedia of Automobile Law and Practice, 509.
Mrs. Ora Gaskin, plaintiff in the court below and appellant here, filed suit for personal injuries in the Circuit Court of Lee County against J. Barney Davis, Chas. Malone, and Worsham Bros. Construction Company, for injuries sustained in a collision between the appellant's automobile and J. Barney Davis' truck at the intersection of Highway Nos. 15 and 32 in Chickasaw County, Mississippi. From a verdict for the defendants, appellant appeals.
The record discloses that this accident occurred August 14, 1957, at the intersection of Highways 15, running north and south, and 32, a gravel road leading west to Houlka, a distance of approximately five miles. Worsham Bros. were paving this highway from the intersection with Highway 15 west to Houlka. Appellee Davis was employed by the construction company and was driving his own truck while hauling dirt on this particular job; appellee Malone was employed by the construction company as a flagman and was standing in the southeast corner of the intersection when the wreck occurred.
The evidence shows that the appellant, Mrs. Gaskin, was traveling south on State Highway 15, and, according to her testimony, she knew the construction work was going on at the intersection. While traveling south she saw the highway sign, "Slow to 40," and immediately reduced her speed to 40 miles an hour approximately 1000 feet north of the intersection. She continued the 40 mile speed going into the intersection where the wreck occurred. The evidence shows that there was a sign approximately 750 feet north of the intersection which read, "Danger Construction Ahead," and nearer the intersection was the Highway Department's sign indicating an intersection. Her testimony was that she did not see these two latter signs, did not see appellee Malone, the flagman, until she was within 40 or 50 feet of the intersection, and did not see the truck until she was within 20 or 30 feet of it.
The appellees' testimony was that appellant was traveling at a speed of 65 to 70 miles an hour and that she was not keeping a proper lookout.
(Hn 1) Appellant first argues that the court erred in denying the motion for a new trial on the ground that the verdict was against the overwhelming weight of the evidence. We are of the opinion that this assignment is not well taken. The testimony in the case was sharply conflicting and there were many contradictions as to the proximate cause of the accident. The appellant argues that the appellee Davis' testimony is not worthy of belief. However, (Hn 2) this was peculiarly a matter for the determination of the jury. Schumpert v. Watson, 241 Miss. 199, 129 So.2d 627. Sec. 1455, Miss. Code 1942, provides that "all questions of negligence and contributory negligence shall be for the jury to determine."
(Hn 3) The appellant next argues that the court erred in refusing the appellant's requested instruction for a peremptory on the issue of liability. We find no merit in this assignment. As heretofore stated, the evidence was conflicting and this was a case for the determination of the jury. It is settled law in this State that the jury is the judge of the weight and worth of the evidence, and unless the verdict is manifestly erroneous or it is apparent that the jury was actuated by passion, prejudice or corruption, the verdict of the jury on an issue of fact will be sustained. Faulkner v. Middleton, 186 Miss. 355, 188 So. 566.
The appellant's remaining assignments of error pertain to the granting and refusal of certain instructions. We have carefully examined all the instructions granted and refused the parties and we find no reversible error therein. Taking all of the given instructions and considering them as one, the jury was furnished a correct and sufficient guide. Greyhound Corp., et al v. Kindle, 128 So.2d 567.
We are of the opinion that the judgment in this case is supported by substantial evidence and should be and it is affirmed.
Affirmed.
Lee, P.J., and Kyle, Ethridge and Rodgers, JJ., concur.