Opinion
No. 32696.
September 27, 1937.
1. AUTOMOBILES.
In action for death of truck driver who was struck by bus at or about an intersection while driving under influence of intoxicants, evidence of bus driver's negligence, in view of speed maintained by bus across intersection, held for jury.
2. TRIAL.
In action for death of truck driver killed in automobile collision, permitting jury to view scene of accident was within court's discretion, notwithstanding changes in situation since time of accident, which were not such as to interfere with jury's determining at what point drivers of colliding automobiles could see each other (Code 1930, section 2066).
3. TRIAL.
Permitting counsel for plaintiff to renew motion for view of scene of accident, in jury's presence was not reversible error, where opposing counsel had already reserved objection to such motion and hence did not have to renew objection (Code 1930, section 2066).
APPEAL from circuit court of Lauderdale county. HON. ARTHUR G. BUSBY, Judge.
Wilbourn, Miller Wilbourn, of Meridian, and Eaton Eaton, of Gulfport, for appellants.
Pete McCrary, at the time and occasion of the injuries to him and his death, and immediately prior thereto, was driving a truck under the influence of intoxicating liquors so that he could not safely drive such truck, and that he was driving such truck at the time at an excessive and unlawful rate of speed.
Appellants contend that if under all the evidence in this case they are not entitled to a reversal of this cause and judgment here in their favor, then the verdict against them on all the proof is so overwhelmingly contrary to the preponderant testimony of all the witnesses who were in the best position to know the facts and whose statements conformed to the established and uncontroverted physical facts as that no judgment contrary to such testimony should be allowed to stand, it being manifest therefrom that the verdict against appellants could not possibly be based on any ground but prejudice, bias, passion and gross indifference on the part of the jury to the right and justice of the cause.
This case should be reversed and remanded for the error of the court below in sustaining the motion made by the appellee after the appellee's testimony had been introduced in the case and finally granted by the court, after all the testimony for both sides was introduced in the case, to allow the court and the jury to view the place at which the collision occurred, which was done over the objections of the appellants.
It was improper for the court to permit the jury to go to the place of the accident and view the place because it is not in the same condition as it was at the time of the accident.
We submit that no evidence nor sworn statements were submitted to the court for the necessity of the jury viewing the premises. The only testimony that was taken on the motion was as to the changed conditions at the place of the accident between the time of the accident and the trial of the cause.
We submit that the viewing of the premises by the jury was not of essential aid to them in arriving at a correct verdict.
We submit that it certainly was not shown that it was impracticable and inefficient to present the material elements to the jury by the photographs, maps and the like that had been introduced in the case.
There is no question but that material changes had taken place at the scene of the accident between the day of the accident and the viewing of the premises by the jury.
We therefore respectfully submit that it was reversible error for the court to allow the jury to view the premises after all the testimony had been introduced.
National Box Co. v. Bradley, 171 Miss. 28, 157 So. 91; Great Atlantic Pacific Tea Co. v. Davis, 171 So. 550.
Reily Parker, of Meridian, for appellee.
The driver of the bus was guilty of negligence in causing the bus to be operated at an unlawful rate of speed, and the overwhelming weight of the testimony establishes this negligence. The driver of the bus was guilty of negligence in not keeping a proper lookout as he entered this intersection, and he was also guilty of negligence in failing to keep a proper lookout as he proceeded across this intersection. The driver of the bus was guilty of negligence, even if he did keep a proper lookout, in failing to use reasonable care after seeing the approaching truck, to avoid the collision. And that each and all of these acts of negligence are shown by the overwhelming weight of the testimony.
If there was no element of negligence in this case other than the charge that the bus was being operated at a greater rate of speed than permitted by the ordinance, fifteen miles per hour, in connection with the proof that the deceased was applying his brakes and doing all that he could to avoid the collision, would make the liability of the appellants a question for the jury. The fact that the bus was being operated at an unlawful rate of speed is prima facie evidence of negligence, is negligence per se, and so held by a number of cases. This rule of law will not be disputed.
McDonald v. Moore, 131 So. 824; Ulmer v. Pistole, 76 So. 522.
There were other elements of negligence of which the defendant was guilty in the Ulmer v. Pistole case, but it yet remains that the evidence shows that the defendant did not see the deceased and collided with the vehicle in which she was riding while running his automobile at an unlawful rate of speed, and the Supreme Court held that this speed was negligence per se and proximately contributed to the injury.
Snyder v. Campbell, 110 So. 678.
In the case at bar the driver of the bus states that he did not see the truck in which the deceased was riding until after the collision, and the overwhelming weight of the evidence is that the bus was being run at an unlawful rate of speed, and on these two facts there was a question for the jury.
Daniel v. Livingstone, 150 So. 662.
We think that if the bus driver was driving properly and at a lawful rate of speed and saw the approaching truck, and thereafter failed to exercise ordinary care proximately contributing to the collision, that the defendant would be liable, and in this case these matters were for the jury, and the judgment would be sustained on this theory if there were no other elements of negligence.
From the proof in the record, the jury was warranted in finding that in addition to the bus driver seeing the approaching truck and failing to do anything to avoid the collision, that the bus was being operated at an unlawful rate of speed, which would bring the case within the facts of Hadad v. Lockeby, 169 So. 691.
Ulmer v. Pistole, 76 So. 522; McDonald v. Moore, 131 So. 824; Daniel v. Livingstone, 150 So. 662; Aycock v. Burnett, 128 So. 100.
All the uncertainties within the realm of reason are for the jury, and the greater the uncertainty, the broader is the field and duty of the jury. All facts that are subject to different reasonable inferences are for the jury.
Bonelli v. Branciere, 90 So. 245; Ulmer v. Pistole, 76 So. 522.
The scene of this accident was within the corporate limits of the City of Meridian, and only a short distance from the court house, and the appellee deeming it of importance that the facts concerning the physical conditions existing at the time of the collision should be made as certain as possible, and that such conditions could be revealed by observation, desired that the court and the jury view the scene, and made a motion to that effect. When this motion was made, the same having been made out of the presence and hearing of the jury, the appellants objected to the motion being sustained on the grounds that the conditions that might be observed had been changed since the accident and that such observation was without evidential value, due to the fact that all evidential condition had been and would be fully shown by the other testimony, including maps and photographs. Whereupon, testimony was offered for the consideration of the court in ruling on the said motion, but when one witness had testified, it was agreed that the ruling on the motion would be deferred until all of the testimony had been heard, and that the motion then might be renewed and acted upon by the court. The taking of testimony on the general merits of the cause was then resumed and the motion was not renewed until all of the testimony, both for the appellee and the appellants, had been concluded.
When the motion was renewed, the appellant again objected and the grounds of objection again stated. The appellee in making this motion stated that the evidence was conflicting and could be better understood by seeing the surrounding conditions, and that such conditions had not been materially changed, and that the angle at which the roads crossed had not been changed, and that all objects, which could have obstructed the view of these drivers, were then the same as at the time of the accident. The appellants again objected, stating that the grounds of objection were the same as first stated, and that in addition thereto, other photographs and maps had been offered in evidence, and also that the testimony showed material changes in such conditions.
In stating to the court, at the close of the testimony, that the appellee desired to renew his motion, appellee's attorney said in the presence of the jury: "Now, Judge, I want to renew my motion, and for that reason ask that the jury retire. Under the law it has to be done." After the jury had retired, the motion was again presented to the court, and after due consideration, was sustained, and the court and jury were carried to the scene of the accident and there viewed the scene.
The evidence did not show that any of the claimed changes affected the value of the observable material conditions at this scene, and the nature of the changes claimed, shows that they could not have materially changed the surrounding conditions; and it is manifest that the trial court was correct in holding that no testimony had been offered which showed any material change in the conditions.
The exactness of the opportunity of observation by these drivers was of importance in this case. The jury was not merely required to find whether the bus driver was guilty of negligence and if the truck driver was guilty of negligence — the jury was required to find the degree of negligence of which both drivers were guilty, and to accurately calculate the relative or comparative negligence of both.
In the case of McDonald v. Moore, 131 So. 824, one of the questions before the Supreme Court on appeal was the ruling of the trial court as to whether or not the jury should have been allowed to consider punitive damages — whether the defendant was guilty of gross negligence — the degree of negligence of which the defendant was guilty, and the court said: "Great deference must be given to the judgment of the trial judge in passing upon the case as to whether there is proof sufficient to submit punitive damages. Of course his judgment is not entirely controlling but he sees the witnesses, observes testimony, and had the local situation constituting the physical facts somewhat better in mind and view than they can be obtained from the printed record."
It is only when the objecting party is required to state his objection in the presence of the jury, that any error is committed, and such error is not based upon the making of the motion, even if such motion had been made in this case.
National Box Co. v. Bradley, 157 So. 91.
The record shows that the motion to view the scene was not made in the presence of the jury, but if it had been so made, it would not have been error, unless the objecting party had been required to make his objection in the presence of the jury, which is not the case here.
National Box Co. v. Bradley, 157 So. 91; Great Atlantic Pacific Tea Co. v. Davis, 171 So. 550.
In the case at bar the correct procedure was followed. The jury was retired; the motion was properly presented informing the court and opposing counsel of the necessity therefor and the conditions warranting the same; opposing counsel objected and joined issue on the matters differed about; and proof was heard on these differences until it was agreed that the motion would be considered on all of the testimony, which was done. Therefore, the record shows that the proper procedure was followed, and the record also shows that this is not a case where there is a doubt as to whether the overwhelming weight of the testimony is against the verdict. We feel sure that the trial judge was impressed with the advantage to be gained by the jury in being permitted to see the surrounding facts and conditions, and that it was proper, in order to reach the ends of justice, to have the jury afforded this advantage. This opinion of the trial judge is abundantly supported by the testimony; the correct procedure was followed; and there is no error in this regard.
Argued orally by C.C. Miller, for appellant.
Appellee, Mrs. Catherine McCrary, a widow, brought an action to recover damages against the Mississippi Power Company and Ira H. May for the death of her husband, Delmar Lynn McCrary. The cause of action was based upon the collision of the bus of the Mississippi Power Company driven by Ira H. May and a truck driven by the deceased, Delmar Lynn McCrary; the collision occurring at or about the intersection of Highway No. 11, running approximately north and south, and Highway No. 80, running east and west, in the city of Meridian.
On the issues of negligence we do not deem it necessary to set forth a detailed statement of the facts. The appellee, in the court below, relied upon the negligence of the driver of the bus in exceeding the speed ordinance of the city of Meridian, and also in his not making any effort to avoid the collision after he saw, or should have seen, that her husband was proceeding into the intersection.
The evidence of several witnesses was conflicting as to the speed maintained by the bus while being driven across this intersection. There was ample evidence to support the verdict of the jury that the speed at which the bus was driven proximately contributed to the injury. We think it is conceded that the deceased, McCrary, the driver of the truck, was negligent in that he violated the speed ordinance and was under the influence of intoxicating liquor. The conflict as to the speed of the bus was settled by the jury adversely to the appellants; and we do not think that we are warranted in setting aside its judgment because the court refused a peremptory instruction. Nor do we think the court below erred in overruling a motion for a new trial on the ground that the overwhelming weight of the evidence was against the verdict of the jury. This conclusion is reached on the record in this case without regard to the view of the scene by the jury.
The appellants assign here as error the action of the court below in permitting the jury to view the scene of the accident, and contend that counsel for the appellee improperly presented a renewal of the motion to view the scene of the accident in the presence of the jury. These causes for reversal in the order stated by us are:
1. That the motion of appellee for the jury to be allowed to view the place of the accident and the renewed motion did not state facts or reasons which authorized the court to view the premises;
2. That no evidence nor sworn statement was presented to the court showing the necessity for the jury to view the premises;
3. That the view by the jury was not of essential aid to it in reaching a correct verdict, as all the material evidence was fully presented to the jury by photographs, diagrams, maps, measurements, and the like;
4. That material changes had been made at the place of the accident between the time of the accident and the day the jury viewed the place; and
5. That it was prejudicial to appellants for the appellee to renew her motion (to view the premises) in the presence of the jury and to take testimony in the presence of the jury as to the changes in conditions at the scene of the accident as the conditions existed on the day of the accident and on the day of the trial of the cause.
At the close of the appellee's evidence in chief, the record shows the following: "At this point the jury retires from the presence and out of the hearing of the Court, and the following proceedings were had in the absence of the jury." Thereupon counsel for the appellee moved the court "for leave to have the jury view the premises and scene of this accident, that they may better understand the testimony which had been offered," suggesting that the scene of the accident was only a short distance from the courthouse in the city of Meridian where the trial was being heard; that while there had been a change in the paving of the road, the other physical objects were practically the same as they were at the time of the accident. Whereupon counsel for the appellants objected to the jury viewing the scene for the reasons stated above by this court, which were amplified by counsel in his statement. As to the statement as to the change of scene, it is stated that a "light pole" or traffic light had been placed there; that the appellants intended to offer a map as of the time of the accident and as of the situation as it then existed. As a matter of fact, some photographs had already been offered in evidence, and a map made at the expense of appellee. Thereupon the court passed the motion until the next morning upon the statement of counsel for the appellee that it was desired to offer additional testimony that there had been no substantial changes at the scene of the accident.
A witness, James, was offered, who testified that Highway 11 had been paved, a telephone pole had been moved, and that the road had been raised below the intersection. In addition to the evidence of this witness, it was shown that an embankment, which would tend to obstruct the drivers' view of each other before they entered the intersection, was steeper at the time of the accident than on the day of the trial, and that a curb about two feet high had been erected on the east side of Highway 11. When this witness had been discharged, in the presence of the jury counsel for appellee said: "Now, Judge, I want to renew my motion, and for that reason I ask that the jury retire. Under the law it has to be done." After the jury had retired, counsel for the appellants entered objections to the remark, above quoted, and in opposition to the motion to view the scene of the accident by the jury.
At the conclusion of the argument of these questions, the court stated: "There was no statement in the presence of the jury that said testimony was taken in any connection whatever with the view of the premises, and nothing was stated by the attorneys on either side or the Court in the presence of the jury in regard to any view of the premises." The court thereupon announced that it would not rule upon the motion to view the scene until just before all the testimony on both sides was in.
After all the testimony was taken in the case, appellee, in the absence of the jury, renewed her motion for the jury to view the scene, and stated further to the court as the ground for said motion that the evidence in the case was conflicting; that the evidence showed that the angle at which the roads crossed each other was the same as it was at the time of the accident, and all objects which could have in any way obstructed the view, either of the driver of the bus or the truck, were the same at that time as at the time of the accident. The appellants again resisted the motion, stating the substance of what had been above set forth. The court in passing upon the motion said, among other things: "Gentlemen . . . one of the main points in this law suit is what distance the drivers of the two different vehicles could see each other or were unable to see each other. As I understand it that is one of the main points in this law suit." The court further said that there had not been any change that "would change the distance that the two drivers in the two different vehicles could see each other."
Authority for a view of a scene by the jury away from the courthouse is to be found in section 2066, Code 1930. This section has been recently construed in the cases of National Box Company v. Bradley, 171 Miss. 15, 28, 154 So. 724, 157 So. 91, 93, 95 A.L.R. 1500 and Great Atlantic Pacific Tea Company v. Davis, 177 Miss. 562, 171 So. 550, at page 552, in which latter case the court quotes the rule from the former case: "`And because a view when taken very nearly divests the appellate court of its power to review the case on the evidence, a request for a view should never be granted unless it appears reasonably certain that it will be of essential aid, not merely of some aid, to the jury in reaching a correct verdict, and that it is distinctly impracticable and inefficient to present the material elements to the jury by photographs, diagrams, maps, measurements, and the like.' It would seem hardly necessary to add anything to the last-quoted ruling by this court that a view must be of essential aid, not merely of some aid, and that this must be made to appear as reasonably certain. We add nothing except by way of emphasis when, as already above stated, we have now said that a view is allowable only when the alleged necessity therefor `in order to reach the ends of justice' bears some fair relation by way of equivalency, in that interest, to the right which otherwise would be unhampered and unimpaired to have the verdict reviewed on the record evidence."
In the case of Great Atlantic Pacific Tea Co. v. Davis, supra, the court further laid down the rule that the request for a view of a scene may be made orally, in the absence of a jury, and transcribed into court reporter's record, but the request must state facts which show that view would be of essential aid, and if other party objects or challenges facts, the court must hear evidence or sworn statements touching those facts which must be reported in transcript, otherwise no order for a view can be validly made.
We think the facts stated to the court in the two motions, together with the court's statement quoted, supra, in passing on the motion, brought the question of the view of the scene within the discretion lodged in the court, and that we can not now say that the view of the scene did not tend to accomplish the ends of justice. We are also of the view that the changes in the situation as shown by the entire record were not such as to interfere with the jury having full opportunity to determine at what point the two drivers of the colliding motor vehicles could or could not see each other.
There does not appear any merit in the fifth objection of counsel for appellants, that it was desired to renew the motion in connection with the taking of testimony which related to the scene of the accident. Counsel had already reserved the objection. Practically all the testimony in this case was directed to what occurred at this place, so that there was nothing which put upon counsel for the appellants the burden of renewing his objection to the view of the scene in the presence of the jury. There is no merit in the several contentions.
We are of the opinion that the other assignments of error do not call for a statement from the court relative thereto. We find no reversible error in this record.
Affirmed.