Opinion
No. 39211.
April 26, 1954.
1. Automobiles — instructions — referring jury to declaration — to ascertain issues — not reversible error — where other instructions presented decisive issue.
In suit for injuries sustained when defendant's overtaking automobile struck plaintiff's motorbike while making a left turn, instruction to the effect that plaintiff was required to prove all material allegations in his declaration, was erroneous in that it referred the jury to the declaration in order to ascertain the issues, but such error did not warrant a reversal in view of other instructions which clearly submitted the decisive issue.
2. Automobiles — instructions — negligence — proximately caused collision — considered as a whole.
Instruction that plaintiff was required to prove that defendant's alleged negligence proximately caused the collision was erroneous in that it failed to require finding that such negligence proximately caused or contributed to collision, but such error did not work a reversal where all instructions considered together removed any basis for misunderstanding caused by the omission.
3. Automobiles — motorbike collision — evidence — supported verdict for defendant.
In such suit, evidence supported finding that plaintiff had failed to give the required signal before turning to left, and the resultant verdict for defendant.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Lowndes County; JOHN D. GREENE, JR., Judge.
Cunningham Cunningham, Booneville; Sims Sims, Columbus; Armis E. Hawkins, Houston, for appellant.
I. Instruction No. One for the defendant requires plaintiff to prove all the sixteen allegations of his declaration by a preponderance of the evidence or fail. Southern Broadcasting Co. v. Tracy, 210 Miss. 836, 50 So.2d 572.
II. Proper instructions afterwards given do not cure erroneous inconsistent instructions and do not in any way extricate the difficulties in the jury's mind wrought by such instructions. Haney v. State, 199 Miss. 568, 24 So.2d 778; Southern Broadcasting Co. v. Tracy, supra; Wallace v. Billups, 203 Miss. 853, 33 So.2d 819.
III. Instruction No. Two ignores comparative negligence altogether and puts the whole burden on the plaintiff for the whole wrong done, totally ignoring the statute on comparative negligence. Wallace v. Billups, supra; Secs. 1454-5, Code 1942.
IV. Instruction No. Three is wholly erroneous because it is impertinent and calculated to confuse and mislead the jury on an issue not involved. This instruction charges the plaintiff with the same degree of care and puts the same observance of the rules of the road as was required of the defendant in the operation of his automobile. Brister v. Illinois Cent. R.R. Co., 84 Miss. 33, 36 So. 142; Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426; Pascagoula St. Ry. Power Co. v. Brondum, 96 Miss. 28, 50 So. 97; Southern Ry. Co. v. Lanning, 83 Miss. 161, 35 So. 417.
V. The Court erred in declining to allow the plaintiff to exhibit the motorcycle which was present, easily handled and which of itself would have solved the issue as to whether the impact came from the side as the defendant claimed or from the rear as the plaintiff claimed. Vol. VIIA, Southern Digest, Criminal Law, Sec. 404(4) p. 139. Wm. G. Burgin, Jr., Sams Jolly, Columbus, for appellee.
I. If the instructions granted appellee and complained of by appellant were not correct, they still did not constitute reversible error.
A. An error in instruction referring to declaration to ascertain the issues is not reversible error where all instructions considered together properly present the issues. Evans v. Jackson City Lines, Inc., 212 Miss. 895, 56 So.2d 80; Hammond v. Morris, 156 Miss. 802, 126 So. 906; Southern Ry. Co. v. Ganong, 99 Miss. 540, 55 So. 355; Teche Lines v. Kellar, 174 Miss. 527, 165 So. 303; Wilburn v. Gordon, 209 Miss. 27, 45 So.2d 844.
B. Where evidence is overwhelming in favor of appellee the case will not be reversed because of erroneous instructions. Pascagoula St. Ry. Power Co. v. Brondum, 96 Miss. 28, 50 So. 97.
C. Instructions in a case must be considered as a whole, and if they fairly and fully present the law applicable to the issues they are sufficient. Brown v. Watkins, 213 Miss. 365, 56 So.2d 888; Cox v. Dempsey, 171 Miss. 678, 171 So. 788; Gulfport Fertilizer Co. v. Bilbo, 184 Miss. 808, 174 So. 65; Metropolitan Life Ins. Co. v. Moss (Miss.), 192 So. 343; Orr v. Columbus Greenville Ry. Co., 210 Miss. 63, 48 So.2d 630; Sumner Stores of Miss. v. Little, 187 Miss. 310, 192 So. 857; Yorkshire Ins. Co. v. Brewer, 175 Miss. 538, 166 So. 361.
II. The Court did not err as to the introduction of the motor vehicle for the following reasons:
A. There was no proper offer to introduce the motor vehicle.
B. There was no statement as to what was intended to be proved by the motor vehicle.
C. The motor vehicle could not have been properly introduced in evidence.
D. The Supreme Court cannot consider evidence which trial court excluded. Guinn v. Fountain, 159 Miss. 619, 132 So. 556; Martin v. Gill, 182 Miss. 810, 181 So. 849.
John P. Harrington sued S. Talmadge Pilkinton in the Circuit Court of Lowndes County to recover damages for personal injuries which he sustained in a collision between his motorbike and Pilkinton's automobile. The verdict of the jury was for the defendant, and Harrington appealed.
About 5 p.m. June 19, 1952, plaintiff was riding his motorbike on Highway No. 8 from his place of business in the town of Houston to his home, about 2 miles east of town. The defendant, in an automobile, was traveling in the same direction. As plaintiff cut to the left in order to go to his home, on the north side of the road, there was a collision between the two vehicles, as the result of which, the injuries were sustained.
By his declaration and proof, the plaintiff tendered this issue: Pilkinton, by failing to keep a proper lookout and his automobile under control, and in driving at a high rate of speed, on the wrong side of the road, without blowing his horn or giving any other signal, negligently drove into and against the motorbike at a time when plaintiff was lawfully making a left turn, after giving the statutory signal therefor.
On the contrary, the answer and proof of the defendant was an unequivocal denial of plaintiff's contention and version. He affirmed that he was operating his automobile in accordance with the law, and that, at a time when he was attempting to pass the motorbike in a safe and lawful manner, the plaintiff, without any notice whatever, suddenly turned his motorbike sharply to the left and ran into the automobile.
These facts were without substantial dispute: The road was straight and without obstructions. Harrington knew the automobile was behind him. Pilkinton knew the motorbike was in front of him. The motorbike was traveling at a speed of about 30 miles an hour. The automobile speeded up from about 35 miles an hour to 45 or 50. The collision occurred while the automobile was attempting to pass. It happened on the north side of the highway.
The decisive issue was whether Harrington gave the required signal before turning to the left and Pilkinton negligently ran into him, or whether he cut sharply to the left, without giving a signal, and negligently ran into the automobile.
Miss Nadine Armstrong gave substantial corroboration to the plaintiff's version. The defendant was the only eyewitness on his side. Some physical facts sustained the plaintiff's version, while others corroborated the defendant.
The plaintiff obtained liberal instructions which pointed out the duty of the defendant in regard to the control of his automobile; in following the motorbike; in operating his automobile at a reasonable and proper speed; and in keeping a proper lookout ahead. The jury was further instructed, in effect, that if plaintiff gave a proper signal that he was leaving the highway and the defendant saw, or should have seen it, but on account of unreasonable speed he struck the motorbike, then the jury should find for the plaintiff.
(Hn 1) Defendant's instruction No. 1 required the plaintiff to "prove each and every material allegation of his declaration by a preponderance of the testimony in this cause, and if you believe that the plaintiff has failed to meet this burden, or has failed to prove any one material allegation of his declaration, then it is your sworn duty to return a verdict in this cause in favor of the defendant."
Appellant contends vigorously that the granting of the above instruction No. 1 constituted reversible error.
This Court has repeatedly criticized instructions which refer the jury to the declaration in order to ascertain the issues. Southern Railroad Co. v. Ganong, 99 Miss. 540, 55 So. 355; Hammond v. Morris, 156 Miss. 802, 126 So. 906; Teche Lines, Inc. v. Kellar, 174 Miss. 527, 165 So. 303; Wilburn v. Gordon, 209 Miss. 27, 45 So.2d 844; Evans v. Jackson City Lines, Inc., 212 Miss. 895, 56 So.2d 80; Southland Broadcasting Co. v. Tracy, 210 Miss. 836, 50 So.2d 572.
The Ganong case, supra, was not reversed because it was held that the instruction was without prejudice; that other portions of the instructions contained the facts necessary to be believed by the jury; and the declaration set out the cause of action clearly. The Morris case, supra, was not reversed because other instructions covered the questions at issue and the particular allegation referred to in the latter part of the instruction was material. The Kellar case, supra, was not reversed because the error was cured by other instructions. The Gordon case, supra, was not reversed because other instructions incorporated the absent hypothesis omitted from the challenged instruction. The Jackson City Lines case, supra, was not reversed because the issues were admittedly outlined in a plaintiff's instruction. In the Tracy case, supra, a verdict was returned against the defendant notwithstanding it had obtained the instruction, and the error was therefore deemed harmless.
We now again condemn that kind of instruction and inveigh against it. However, since the instructions for the parties clearly submitted the decisive issue in the case, we hold that the error in this respect was not such as to warrant a reversal of the case.
(Hn 2) Defense instruction No. 2, complained about, should have required the plaintiff to prove by a preponderance of the evidence that the alleged negligence of the defendant proximately caused or contributed to the collision, instead of merely proximately caused the collision, and, to that extent was erroneous. However, in his instructions Nos. 2, 4 and 5, the plaintiff used only the term proximate cause. In his instruction No. 1 the announcement was that it was only necessary that the negligence "proximately contributed" to the collision. When the instructions are all read and considered together, there is no substantial basis upon which the jury could have been misled by such omission.
The other assignments have been duly considered, but are not deemed of sufficient merit to require a response.
(Hn 3) The disputed issues of fact in this case make it typical for the decision of a jury. There was sufficient evidence to sustain their finding; and it follows that the case should be, and is, affirmed.
Affirmed.
Roberds, P.J., and Holmes, Arrington and Ethridge, JJ., concur.