Opinion
No. 40093.
May 21, 1956.
1. Motor vehicles — negligence — injury to guest — when truck driven by defendant host struck stump in fishing camp road — defendant's instruction erroneous.
In action by guest in truck against host for injuries sustained when truck struck stump on fishing camp road, instruction, which in effect told jury that if they believed from the evidence that the road was a blind, fishing camp road, and that there were stumps and brush in the road, and that the plaintiff knew that this was the condition of the road, yet voluntarily rode with the defendant in the truck, the plaintiff assumed the risk incident to travel along the road and jury should find for defendant, even though jury might believe from evidence that defendant was negligent in failing to keep proper lookout for stumps and other obstructions in road or in driving at a greater rate of speed than was reasonable under the conditions then existing, and that the accident was caused by the defendant's negligence, was erroneous.
2. Motor vehicles — same — same — same — same.
Instructions, which in effect told jury that they must return a verdict for the defendant if they believed from the evidence that the accident resulted from the hazards and dangers incident to motor vehicle travel over the fishing camp road even though the jury might believe from the evidence that the defendant was negligent in the operation of his motor vehicle and that his negligence contributed to the accident, was erroneous.
3. Motor vehicles — duty owner or operator owes guest.
Owner or operator of an automobile owes a guest a duty to exercise reasonable care in the operation, and not unreasonably to expose him to danger and injury by increasing hazard of travel.
4. Motor vehicles — evidence — sufficient to take case to jury question whether guest knew hazards incident to travel on fishing camp road.
In such case, evidence was sufficient to take to jury question whether guest knew of the hazards and dangers incident to travel on the fishing camp road.
5. Motor vehicles — invited or permissive guest — assumption of risk — known or obvious dangers — dangers created by negligent operation not within rule.
An invited or permissive guest in an automobile assumes the risk, as between himself and his host, of injury from known or obvious dangers or hazards incident to the ordinary operation of the vehicle, and cannot recover for injuries resulting therefrom, but he does not assume the risk of a danger created by negligent operation of vehicle over which he has no control.
6. Motor vehicles — negligence — invited guest riding in truck on fishing camp road — assumed risk of known or obvious dangers — but did not assume additional risk of injury due to driver's failure to exercise reasonable care.
Guest who was riding in truck on fishing camp road and who knew hazards and dangers incident to such travel, assumed risk of injury from the known or obvious dangers and hazards incident to such travel but did not assume additional risk of being injured as a result of driver's failure to exercise reasonable care in operation of vehicle.
7. Instructions — negligence — injury to guest — assumption of risk — instructions — erroneous.
In such case, instructions to the effect that guest could not recover if he knew of risk of travel on the particular road were erroneous, and were not cured by other instructions to effect that guest could recover if driver had been negligent.
8. Instructions — contradictory instruction — as not curing erroneous instructions.
Mere contradictory instructions do not cure erroneous instructions.
9. Motor vehicles — negligence — evidence — sufficient to take case to jury question whether host had been negligent.
In such case, evidence was sufficient to take to jury question whether host had been negligent.
Headnotes as approved by Kyle, J.
APPEAL from the Circuit Court of Humphreys County; ARTHUR JORDAN, Judge.
James T. Bridges, Belzoni; Barnett, Jones Montgomery, Jackson, for appellant.
I. The Court erred in granting to appellee the instructions shown on page 97 of the record, and the error in this instruction is prejudicial and constitutes reversible error and requires a reversal of this case.
A. The instruction is erroneous because the presence of the stump in the road and the act of the appellant in voluntarily assuming to ride over the road as guest of the appellee with knowledge that there were stumps in the road merely furnished the occasion upon which the injuries were received, and in law his act in so doing was not a proximate cause of the injuries; and the Court committed reversible error in directing the jury by this instruction to find for the defendant, in violation of established law, establishing that the appellant's conduct was not a proximate cause of the injury. Mississippi City Lines v. Bullock, 194 Miss. 630, 13 So.2d 34, 145 A.L.R. 1199; Thompson v. Miss. Cent. RR. Co., 175 Miss. 547, 554, 166 So. 353; Bufkin v. Louisville N. RR. Co., 161 Miss. 594, 137 So. 517; Stewart v. Kroger Groc. Co., 198 Miss. 371, 21 So.2d 912; Mississippi Cent. RR. Co. v. Mason, 51 Miss. 234; Cook v. Champlain Transp. Co., 1 Denio 91; Clayards v. Dethick, 12 Q.B. 439; Vicksburg Jackson RR. Co. v. Patton, 31 Miss. 156; Trow v. Vermont Cent. RR. Co., 24 Vt. 487; Kerwhacer v. The Cleveland, Columbus Cincinnati RR. Co., 3 Ohio St. 172; Pittsburg, Fort Wayne Chicago RR. Co. v. Karns, 13 Ind. 87; Richmond v. Sacramento Valley RR. Co., 18 Cal. 351; Stucke v. Mil. Miss. RR. Co., 9 Wis. 202; Christian v. Illinois Cent. RR. Co. (Miss.), 12 So. 710; Southern RR. Co. v. Floyd, 99 Miss. 519, 55 So. 287; Fuller v. I.C. RR. Co., 100 Miss. 705, 56 So. 783; 38 Am. Jur. 702; Vol. II, Redfield's American Railway Cases, 474.
B. The granting of this instruction constitutes reversible error for the further reason that the proof in this case wholly fails to show, and, in fact, there is no evidence in the record to show that the appellant was apprised of any danger in either the road or the stumps; and the appellant did not assume any danger that might arise from the negligence of the appellee in driving the automobile. Saxton v. Rose, 201 Miss. 814, 29 So.2d 646, 649; Green v. Maddox, 168 Miss. 171, 151 So. 160; Herrin Motor Lines, Inc. v. Jarvis, 156 F.2d 276; Moss v. Gulf Compress Co., 202 Fed. 657, 121 C.C.A. 67; Motor Wheel Corp. v. Dodson, 23 F.2d 282; Sea Food Co. v. Alves, 117 Miss. 1, 77 So. 857; Hines v. Green, 125 Miss. 476, 87 So. 649; Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80, 140 So. 680; Mississippi Power Light Co. v. Smith, 169 Miss. 447, 153 So. 376; Stricklin v. Harvey, 181 Miss. 606, 179 So. 345; Graham v. Brummett, 182 Miss. 580, 181 So. 721; Southern RR. Co. v. Lanning, 83 Miss. 161, 85 So. 417; Brister v. I.C. RR. Co., 84 Miss. 33, 36 So. 142; Rich v. State, 124 Miss. 272, 86 So. 770; Mississippi Fire Ins. Co. v. Dixon, 133 Miss. 570, 98 So. 101; Gow Co., Inc. v. Hunter, 175 Miss. 896, 168 So. 264.
C. The offending instruction constitutes reversible error because it is based upon an assumption by the jury that eliminates from the jury's consideration the question of the defendant's negligence. L. N. RR. Co. v. Bouldin, 110 Ala. 185, 20 So. 325; Graves v. Gulf S.I. RR. Co., 146 Miss. 130, 110 So. 234; Oakes v. Mohon, 208 Miss. 478, 44 So.2d 551; United Novelty Co., Inc. v. Daniels (Miss.), 42 So.2d 395; McDonough Motor Express, Inc. v. Spiers, 180 Miss. 78, 176 So. 723, 177 So. 655; Thompson v. Mississippi Cent. RR. Co., 175 Miss. 547, 166 So. 353; Public Service Comm. v. Watts, 168 Miss. 235, 150 So. 192.
II. The granting of the instruction to appellee shown on page 98 of the record constitutes reversible error and requires a reversal of this case. Lee County Gin Co. v. Middlebrooks, 161 Miss. 422, 137 So. 108; Mississippi Power Light Co. v. Smith, 169 Miss. 447, 153 So. 376; Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42; Gulf Refining Co. v. Brown, 196 Miss. 131, 16 So.2d 765.
Montgomery Varnado, Belzoni, for appellee.
I. The Lower Court should have granted a peremptory instruction directing the jury to find for the defendant because there was no showing of any negligence on the part of E.R. Daniels. Duncan v. Pedarre (La.), 164 So. 498; 38 Am. Jur. 645; Vols. V-VI, Huddy's Cyclopedia of Automobile Law, pp. 221-222.
II. The Lower Court should have granted a peremptory instruction to the appellee, Daniels, because the accident arose out of a risk incident to travel on this road which risk was assumed by the appellant. Saxton v. Rose, 201 Miss. 814, 29 So.2d 646; Green v. Maddox, 168 Miss. 171, 151 So. 160; Monsour v. Farris, 181 Miss. 803, 181 So. 326; 61 C.J.S. pp. 95-96, 98-99; Vols. V-VI, Huddy's Cyclopedia of Automobile Law, pp. 221-222.
III. All of the instructions in a case must be taken and considered as a whole and when so taken and considered, the instructions granted in this case constitute an accurate statement of the law applicable thereto. City of Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590; Lamar Hardwood Co. v. Case, 143 Miss. 277, 107 So. 868; Orr v. C. G. Ry. Co., 210 Miss. 63, 48 So.2d 630; Evans v. Jackson City Lines, 212 Miss. 895, 58 So.2d 80; Russell v. Williams, 168 Miss. 181, 150 So. 528, 151 So. 372; Hercules Powder Co. v. Thompson, 201 Miss. 608, 29 So.2d 823; Milner Hotels, Inc. v. Brent, 207 Miss. 892, 43 So.2d 654; New Orleans N.E. RR. Co. v. Wheat, 172 Miss. 524, 160 So. 607.
IV. The granting of the instruction on page 97 of the record was not error.
V. The doctrine of assumption of risk is applicable to and governs and controls the case.
VI. The question of whether or not the "venturousness" of appellant, Hatcher, in voluntarily riding over a road which he knew to be dangerous merely furnished the "condition and occasion of the injury" and was not a proximate cause thereof, is not a test applicable to cases involving the assumption of risk. Graves v. Johnson, 1779 Miss. 465, 176 So. 256; Monsour v. Farris, supra; Green v. Maddox, supra; Saxton v. Rose, supra; McWhorter v. Draughn, 137 Miss. 515, 102 So. 567; Mayor Aldermen of City of Vicksburg v. Harralson, 136 Miss. 872, 101 So. 713, 39 A.L.R. 777; 61 C.J.S., Motor Vehicles, Sec. 486(g) p. 95; Vols. V-VI, Huddy's Cyclopedia of Automobile Law, Sec. 131 pp. 221-222.
VII. The contention of appellant that there was no evidence that Hatcher knew of any danger in the road or the stumps and did not assume any danger arising out of any negligence of the appellee is not borne out by the evidence and has been determined adversely to appellant by the verdict of the jury.
VIII. It was proper for these instructions to remove from the consideration of the jury any question of whether or not any supposed negligence of the defendant was the proximate cause of the injury since there was no evidence presented to the effect that defendant was guilty of any supposed negligence nor that any such supposed negligence contributed to the accident and especially since plaintiff assumed the risk of doing the specific act from which the accident resulted.
IX. The instruction granted to appellee on page 98 of the record is not improper. Harrington v. Pilkton, 220 Miss. 784, 71 So.2d 884; Black's Law Dictionary (3rd ed.), term "proximate cause."
This case is before us on appeal by R.L. Hatcher, the plaintiff, from a judgment of the Circuit Court of Humphreys County in favor of E.R. Daniels, the defendant, in an action for damages for personal injuries alleged to have been sustained by the plaintiff as a result of a motor vehicle accident which occurred while the plaintiff was riding in a pickup truck which was being operated by the defendant. The case was submitted to a jury, and the jury returned a verdict for the defendant. The appellant assigns as errors on this appeal two instructions granted to the defendant. The appellee, E.R. Daniels, has filed a cross-appeal and assigns as error the refusal of the lower court to grant the appellee's request for a directed verdict.
The facts developed during the trial were substantially as follows: The appellant, R.L. Hatcher, was the owner of an undivided one-half interest in a fishing camp on the Sunflower River. The appellee, E.R. Daniels, together with several other persons, owned the remaining interest in the fishing camp. On the afternoon of May 19, 1954, the appellant and the appellee left their homes in or near the Town of Louise and drove to the fishing camp, taking with them a colored boy, Jim Cole. They traveled in a pickup truck owned and operated by the appellee. The road which they traveled was an unimproved dirt road cut through the woods, with ruts and stumps in the roadway, and also grass and weeds growing up around the stumps. The appellant and the appellee had traveled the road many times, and both knew the hazards and dangers incident to travel over the road. No accident occurred on their trip into the camp.
The parties spent the night at the camp and returned to their homes at Louise the following day over the same road that they had traveled on their way into the camp. Rain had fallen during the evening and night, and there were mud holes in the road. Hatcher testified that, as they started toward home, he said to the appellee, "Elmer, drive careful, don't hit anything, these roads are bad." The ruts in the road were filled with water in some places, and the strips of roadway between the ruts were covered over with weeds and grass. There were some dry spots in the road, but the appellant himself testified that the road was very bad, and on the way back from the camp they came to a puddle of water, 40 or 50 feet in length. The appellee slowed down and as he got close to the puddle of water shifted the gear of the truck into second and increased his speed to go through the puddle of water. As the truck was proceeding through the puddle of water the front axle struck a stump that was concealed by the grass in the middle of the road; the truck stopped suddenly, and the appellant was thrown forward into the windshield of the truck. The appellant's face was bruised and his neck and arms were injured, and the appellant had not fully recovered from the effects of his injury at the time of the trial.
The negligence charged in the plaintiff's declaration was, that the defendant negligently failed to keep and maintain a proper lookout on the road ahead of him, that he negligently failed to have the truck under free, easy and reasonable control, and that he negligently increased the speed of his truck as he shifted the gear into second, and negligently drove the vehicle into the long puddle of water without first ascertaining by proper lookout that the road ahead was clear of obstacles. The defendant in his answer denied that he was negligent in the operation of his vehicle, and as additional matter in defense of the suit averred that the plaintiff and the defendant mutually agreed to make the trip to the fishing camp in the defendant's truck with full knowledge of the known and obvious dangers incident to the operation of the vehicle over and along the fishing camp road, and that the plaintiff and the defendant mutually assumed the risk incident to traveling along the road.
The only points argued by the appellant's attorneys as grounds for reversal of the judgment of the lower court are the alleged errors in the two instructions granted to the defendant, which appear on pages 97 and 98 of the record.
The first of the two instructions is as follows:
"The Court instructs the jury for the defendant that if you believe from a preponderance of the evidence that the road upon which plaintiff and defendant were riding was a blind, fishing camp road, that same contained brush and stumps over which the car passed, that the plaintiff knew that this was the condition of the road; and that plaintiff, knowing this condition of the road, voluntarily rode along same with the defendant in the face of this known risk and danger, the plaintiff assumed the risk incident to travel along this road, and you will find for the defendant."
The other instruction complained of is as follows:
"The Court instructs the jury for the defendant that if you believe from the evidence that the plaintiff was being transported without charge therefor, then the plaintiff assumed all of the ordinary risks of injury from dangers and accidents incident to automobile travel, and if you further believe from the preponderance of the evidence that the accident and injury to the plaintiff was proximately caused from dangers and accidents incident to automobile travel under the facts and circumstances shown by the evidence, then you must return a verdict for the defendant."
It is argued that the first instruction is erroneous for the reasons: (1) That the instruction eliminated from the jury's consideration the question of the defendant's negligence; (2) that there was no evidence in the record to show that the appellant was apprised of any danger in the road; and (3) that the presence of the stump in the road merely furnished the occasion for the injury, and was not the proximate cause of the injury. It is argued that the second instruction is erroneous for the reason that the instruction in effect told the jury that they must return a verdict for the defendant if they believed from the evidence that the accident resulted from the dangers incident to automobile travel on the road, even though the jury might believe that the defendant was negligent in the operation of his vehicle, and that such negligence proximately contributed to the accident.
Both of the above mentioned instructions are erroneous and neither of the instructions should have been granted in the form requested.
(Hn 1) The first instruction is erroneous, not because the evidence failed to show that the appellant was apprised of the dangers incident to travel over the road, or that the stump merely furnished the occasion for the injury, but because the instruction in effect told the jury that if they believed from the evidence that the road was a blind, fishing camp road, and that there were stumps and brush in the road, and that the plaintiff knew that this was the condition of the road, yet voluntarily rode with the defendant in the truck, the plaintiff assumed the risk incident to travel along the road and the jury should find for the defendant, even though the jury might believe from the evidence that the defendant was negligent in failing to keep a proper lookout for stumps and other obstructions in the road or in driving at a greater rate of speed than was reasonable under the conditions then existing, and that the accident was caused by the defendant's negligence. (Hn 2) The second instruction is erroneous because the instruction in effect told the jury that they must return a verdict for the defendant if they believed from the evidence that the accident resulted from the hazards and dangers incident to motor vehicle travel over the fishing camp road even though the jury might believe from the evidence that the defendant was negligent in the operation of his motor vehicle and that his negligence contributed to the accident.
(Hn 3) The rule is well established by decisions of our own Court that the owner or operator of an automobile owes the duty to an invited guest to exercise reasonable care in its operation, and not unreasonably to expose him to danger and injury by increasing the hazard of travel. Cowart v. Lewis, 151 Miss. 221, 117 So. 531, 61 A.L.R. 1229; Westerfield v. Shell Petroleum Corp. et al., 161 Miss. 833, 138 So. 561; Green v. Maddox, 168 Miss. 171, 149 So. 882. And it was error for the court to grant the above mentioned instructions for the reason that the instructions eliminated from the jury's consideration the question of the defendant's negligence in the operation of his vehicle.
(Hn 4) Appellant's attorneys argue that the above mentioned instructions are erroneous for the additional reason that there was no evidence in the record to show that the appellant was apprised of any danger in the road, and that the appellant did not assume any risk on that account. But there is no merit in this contention. The record shows that the appellant knew the hazards and dangers incident to motor vehicle travel on the fishing camp road. The appellant testified that he knew the road was bad, and that it had holes and ruts in it, and that there were stumps in the road. He admitted that they hit a stump with the right fender just before they got to the camp; and he stated that he remembered that when they were coming out to the road from the river he said, "Elmer, drive careful, don't hit anything, these roads are bad." (Hn 5) An occupant of a motor vehicle, as an invited or permissive guest, assumes the risk, as between himself and his host, of injury from known or obvious dangers or hazards incident to the ordinary operation of the vehicle, and, therefore, cannot recover for injuries resulting therefrom. He assumes all the ordinary risks of injury incident to travel in a motor vehicle controlled by a reasonably prudent driver. 61 C.J.S., pp. 95, 96, Motor Vehicles, Sec. 486G. He does not, however, assume the risk of a danger created by the negligent operation of a motor vehicle over which he has no control. 61 C.J.S., p. 100, Motor Vehicles, par. 487 b, and cases cited. See also Green v. Maddox, 168 Miss. 171, 172, 149 So. 882, 151 So. 160; Monsour v. Farris et al., 181 Miss. 803, 181 So. 326; Saxton v. Rose, 201 Miss. 814, 29 So.2d 646; Gower v. Strain, 169 Miss. 344, 145 So. 244.
(Hn 6) The appellant in this case, in our opinion, assumed the risk, as between himself and his host, of injury from known or obvious dangers and hazards incident to the operation of the pickup truck over and along the fishing camp road. But he did not assume the additional risk of being injured as a result of the failure of the appellee, if there was such failure, to exercise reasonable care in the operation of his vehicle over and along the road which they were traveling.
(Hn 7) It is earnestly contended on behalf of the appellee, that even though the two instructions mentioned above were erroneous the errors complained of were rendered harmless by other instructions granted to the appellant which clearly stated that, if the jury believed that the defendant failed to use that degree of care and caution in the operation of his vehicle that an ordinarily prudent person would exercise under the same or similar circumstances, and that his failure to use such degree of care and caution proximately cause or contributed to the plaintiff's injuries, then it was their duty to return a verdict for the plaintiff. But the difficulty with which we are confronted here is, that there was an irreconciliable conflict between the instructions granted to the defendant and the instructions granted to the plaintiff. The plaintiff's instructions embodied a substantially correct statement of the law of negligence relating to the duty owed by the operator of a motor vehicle to an invited guest to exercise reasonable care in the operation of his motor vehicle, and not unreasonably to expose him to danger and injury by increasing the hazard of travel; while the two instructions granted to the defendant eliminated from the consideration of the jury entirely all questions relating to the duty of the driver of the motor vehicle to exercise reasonable care. The errors in the instructions granted to the defendant were not cured by the contradictory instructions granted to the plaintiff. (Hn 8) Mere contradictory instructions do not cure erroneous instructions. Russell v. Williams, 168 Miss. 181, 150 So. 528, 151 So. 372; May v. Culpepper, 177 Miss. 811, 172 So. 336; Jackson v. Leggett, 186 Miss. 123, 189 So. 180; Nowell v. Henry, 194 Miss. 310, 10 So.2d 540; Lipnick v. New York Life Ins. Co., 211 Miss. 833, 52 So.2d 916.
For the errors complained of in the two instructions mentioned above the judgment of the lower court must be reversed on the direct appeal and the cause remanded for a new trial.
(Hn 9) The appellee has assigned as error on his cross-appeal the refusal of the lower court to grant the appellee's request for a directed verdict. But we think there was sufficient evidence in the record to justify the submission of the case to the jury on the negligence issue, and there was no error in the refusal of the trial judge to grant the appellee's request for a directed verdict.
For the reasons stated above the judgment of the lower court is reversed on direct appeal and affirmed on cross-appeal, and the cause is remanded.
Reversed on direct appeal and affirmed on cross-appeal, and remanded.
Roberds, P.J., and Arrington, Ethridge and Gillespie, JJ., concur.