Summary
holding that the trial court erred in allowing the plaintiff to present evidence regarding other accidents involving the defendant driver since the defendants admitted that the driver was acting within the scope of his employment at the time of the accident
Summary of this case from Cameron v. Werner Enters., Inc.Opinion
No. 39887.
January 23, 1956.
1. Motor vehicles — negligence — wrongful death of child playing in street — evidence — failure to keep proper lookout for children.
In wrongful death action against owner and driver of delivery truck for death of child as alleged result of being run over by such truck, evidence sustained finding that defendants' delivery truck had run over deceased child as it pulled out into street after parking on wrong side thereof to deliver drinks to store and that driver, under the peculiar circumstances of the case, had failed to keep a proper lookout for children when he knew they were playing there, and that his negligence in this respect was the proximate cause of the child's death.
2. Trial — damages — argument of counsel — use of chart or blackboard.
There was no merit in defendants' complaint about use by plaintiff's counsel in his closing argument of chart on blackboard outlining argumentatively plaintiff's claims as to damages which jury could consider in action for wrongful death of minor child.
3. Trial — evidence — testimony as to other accidents in which driver involved — erroneously admitted.
In such case, it was error for Trial Court to admit testimony for plaintiff as to other accidents in which driver allegedly was involved.
4. Negligence — instructions — erroneous.
Trial Court committed reversible error in granting plaintiff's instruction which in effect told jury that if jury believed that there was a large parking space on south side of store and that the failure of the driver to park his truck therein was negligence, and if such negligence was the proximate cause of the child's death, then jury could find for plaintiff.
5. Negligence — instructions — erroneous.
Trial Court committed reversible error in granting instructions for plaintiff which authorized recovery if negligence of defendants had been proximate cause of child's death without giving jury any guide as to what specific acts or omissions within pleadings and proof were sufficient to constitute actionable negligence.
6. Negligence — instructions — erroneous.
Trial Court erroneously granted plaintiff's instructions to the effect that defendant was guilty of a willful or a wanton disregard for the safety of persons where there was no evidence adduced to sustain such a charge or finding.
7. Instructions — confusing — incomplete — erroneous.
Plaintiff's instruction which was confusing and apparently incomplete should not have been given.
8. Evidence — coroner's verdict — inadmissible — where admitted without objection — no complaint thereasto in Supreme Court.
Where coroner's verdict reciting that decedent was crushed to death, probably by named defendants' truck driven by named driver and that it was an accident though clearly inadmissible as purely hearsay, was introduced in evidence by plaintiff without objection, no complaint thereasto could be made in Supreme Court.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Lamar County; SEBE DALE, Judge.
M.M. Roberts, Hattiesburg; E.F. Coleman, Purvis, for appellants.
I. The plaintiff had the burden of proof and had duty and obligation to prove not only the death but that the defendants were guilty of negligence which caused or contributed thereto and there is no such testimony in this record. In the first place, there is no testimony to show that the defendants were guilty of negligence. The individual defendant came to his truck and looked and saw no one in front of his vehicle or under it who might be injured and got in his truck and drove away. The defendants surely would not be liable for an accident when a little child would lose its life under circumstances where the driver after using reasonable care could not know of any possible danger in that done by him. New Orleans N.E. RR. Co. v. Burge, 191 Miss. 303, 2 So.2d 825.
II. There is no showing that the driver of the truck had any actual knowledge of the presence of a little child in the area of the right rear wheel of the truck. In fact, there is no testimony to show that the truck had anything to do with the accident. There is nothing to show that the little child was not dead before the truck drove away. There is nothing to show that the little child did not get out to the truck, if the truck was involved, after the driver had gotten into the cab of the truck to drive away. Williams v. Lumpkin, 169 Miss. 146, 152 So. 842.
III. Neither the driver nor the owner of a motor truck is an insurer against accidents arising from its operations. Brown v. Yielding (Ala.), 90 So. 499; Florida Motor Transp. Co. v. Hillman (Fla.), 101 So. 31; Rubio v. Armour Co. (Fla.), 116 So. 40.
IV. The driver of an automobile is only required to exercise reasonable care in the operation thereof and we humbly submit that the testimony in the case now before the Court requires the conclusion that the individual defendant, as driver of the motor truck, used more than ordinary or reasonable care in the operation thereof on the occasion complained of. Robinson v. Haydel, 177 Miss. 233, 171 So. 7.
V. Actionable fault must be predicted on action or non-action accompanied by actual or implied knowledge of facts which make the result not only probable, but one reasonably to be anticipated. Failure to anticipate a bare possibility does not constitute negligence. Under these stated rules we contend that the proof in this cause is not sufficient to charge the individual defendant with negligence even though his truck may have struck the little child, and which is denied. Columbus G. RR. Co. v. Coleman, 172 Miss. 514, 160 So. 277.
VI. Failure to anticipate a bare possibility does not constitute negligence. Goudy v. State, 203 Miss. 366, 35 So.2d 308.
VII. Ordinary or reasonable care of a reasonably prudent person does not require that he should provide for or anticipate an unusual, improbable or extraordinary occurrence. Burnside v. Gulf Rfg. Co., 166 Miss. 460, 148 So. 219; Mauney v. Gulf Rfg. Co., 193 Miss. 421, 9 So.2d 780.
VIII. A motorist must operate his vehicle with due care under the circumstances and when he has done that he is not responsible for an accident which may nevertheless result. Williams v. Lumpkin, supra.
IX. No liability is attached to a motorist where he is proceeding with reasonable care on a street and a child suddenly darts in front of his vehicle so close thereto that the motorist, in the exercise of reasonable care, is unable to avoid striking the child. General Contract Purchase Corp. v. Armour (Miss.), 117 F.2d 147.
X. Negligence which merely furnishes the condition or occasion upon which injuries are received, but does not put in motion the agency by or through which the injuries are inflicted, is not the proximate cause thereof. The question is, did the facts constitute a succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the alleged wrong and the injury. Mississippi City Lines, Inc. v. Bullock, 194 Miss. 630, 13 So.2d 34.
XI. Drivers or owners of motor vehicles are not insurers against all accidents wherein children are injured. Accordingly, a driver proceeding along a street or highway in a lawful manner using ordinary and reasonable caution for the safety of others, including children, will not be held liable for striking a child whose presence in the street could not reasonably be foreseen. He is not required to anticipate the appearance of children in his pathway, under ordinary circumstances, from behind parked automobiles or other obstructions. Comer v. Travelers' Ins. Co., 27 So.2d 438, 441, 34 So.2d 511; Hahn v. Anderson, 123 Pa. Super. 442, 187 A. 450, 326 Pa. 463, 192 A. 489; Vol. II-A, Blashfield's Cyc. of Automobile Law Practice, Secs. 1498, 1509 pp. 406, 440, 443.
XII. When negligence is the subject of the action, the instructions must confine the verdict to the ground or grounds of negligence alleged and in support of which there has been substantial proof. New Orleans N.E. RR. Co. v. Miles, 197 Miss. 846, 20 So.2d 657.
XIII. Instructions, regardless of the theoretical law announced thereby, should be applicable to the issues and proof of the particular case. Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426.
XIV. An instruction which does not guide the jury but on the contrary is confusing and misleading is erroneous. Graham v. Brummett, 182 Miss. 580, 181 So. 721.
XV. An instruction should not be granted unless supported by evidence. Poteete v. City of Water Valley, 207 Miss. 173, 42 So.2d 112.
XVI. The verdict of the coroner's jury was admitted by the Court by same having been read into the record. This was error.
XVII. In action for injuries resulting to plaintiff when struck by automobile on highway, evidence relative to defendant's reputation of being a reckless driver held properly excluded as being incompetent, the question at issue being whether or not driver was reckless on particular occasion. Pounders v. Day, 151 Miss. 436, 118 So. 298.
XVIII. Even if the plaintiff were entitled to recover something, which is denied, still the verdict is excessive.
XIX. The chart argument should require a reversal. Four-County Electric Power Assn. v. Clardy, 221 Miss. 403, 73 So.2d 144.
Lester Clark, Hattiesburg; William E. Andrews, Jr., Purvis, for appellees.
I. Motion for directed verdict was properly overruled. The proof was such that no other reasonable inference could have been drawn from the testimony except that the Nehi truck killed the child, and this matter was heard by the Circuit Judge and the motion overruled, and all the issues were submitted to the jury, and were resolved in favor of the plaintiff.
II. All of the instructions given plaintiff are proper, fair, just, and correct. City of Hattiesburg v. Hillman, 222 Miss. 443, 76 So.2d 368; Cumberland Tel. Tel. Co. v. Anderson, 89 Miss. 732, 41 So. 263; Gordon v. Lee, 208 Miss. 21, 43 So.2d 665; Graham v. Brummett, 182 Miss. 580, 181 So. 721; Gulf Transp. Co. v. Allen, 209 Miss. 206, 46 So.2d 436; Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426; Ponders v. Day, 151 Miss. 436, 118 So. 298; Poteete v. City of Water Valley, 207 Miss. 173, 42 So.2d 112; Sandifer Oil Co. v. Dew, 220 Miss. 609, 71 So.2d 752; Wilburn v. Gordon, 209 Miss. 27, 45 So.2d 844; Sec. 1453, Code 1942.
III. The verdict was not excessive. Aponaug Mfg. Co. v. Carroll, 183 Miss. 793, 184 So. 63; Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470; Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628; City of Vicksburg v. McLain, 67 Miss. 4, 6 So. 774; Gordon v. Lee, supra; Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590; J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779; Louisville N. RR. Co. v. Whisenant, 214 Miss. 421, 58 So.2d 908; McDonald v. Moore, 159 Miss. 326, 131 So. 824; Meridian Amusement Concession Co. v. Robertson, 188 Miss. 136, 193 So. 335; Meridian Sanitorium v. Scruggs, 121 Miss. 330, 83 So. 532; Mississippi Power Light Co. v. Thomas, 206 Miss. 201, 39 So.2d 759, 40 So.2d 597; Mississippi Ice Utility Co. v. Pearce, 161 Miss. 252, 134 So. 164; Naylor, Admrx. v. Isthemian Steamship Co. (N.Y.), 94 F. Supp. 422, 187 F.2d 538; New Deemer Mfg. Co. v. Alexander, 122 Miss. 859, 85 So. 104-07; Phoenix Laundry v. Shemper (Miss.), 44 So.2d 859; St. Louis Iron Mountain Southern Ry. Co. v. Kraft, 237 U.S. 648, 59 L.Ed. 1160, 35 S.Ct. 704; St. Louis-San Francisco RR. Co. v. Dyson, 207 Miss. 639, 43 So.2d 95; Sandifer Oil Co. v. Dew, supra; Sears, Roebuck Co. v. Burke, 208 Miss. 306, 44 So.2d 448; Southern Bell Tel. Tel. Co. v. Quick, 167 Miss. 438, 149 So. 107.
IV. There is no set standard of damages for a death in Mississippi. It is discretionary with the jury in fixing the amounts. Avent v. Tucker, 188 Miss. 207, 194 So. 596; 25 C.J.S., Sec. 115 p. 1265.
V. There is no exact standard by which to determine the amount of damages for pain and suffering. Biedenharn Candy Co. v. Moore, supra; J.C. Penney Co. v. Evans, supra.
VI. The chart argument. Clisby v. M. O. RR. Co., 78 Miss. 937, 29 So. 913-14; Four-County Electric Power Assn. v. Clardy, 221 Miss. 403, 73 So.2d 144; Haley v. Hockey, 103 N.Y.S.2d 717; Sandifer Oil Co. v. Dew, supra.
This is an appeal from a verdict and judgment of the Circuit Court of Lamar County in the amount of $7,500 in favor of appellee, administrator of deceased's estate, against appellants Nehi Bottling Company of Ellisville, a corporation, and Claude Davis, driver of the company's truck. Since this case must be reversed and remanded for a new trial, primarily because of erroneous instructions and also for certain errors in the admission of testimony, the statement of facts which the jury was authorized to find will be abbreviated but sufficient to state the background and reasons for this decision.
Rushell Jefferson, a little Negro girl of the age of sixteen months, was the daughter of appellee administrator, John Jefferson, and his wife Nancy. She was run over and killed by appellant company's truck, driven by Davis, early in the afternoon of May 20, 1954, in the Town of Lumberton. Bay Street runs north and south, and on the east side of it is situated the Jefferson home. It is close to this narrow street. On the front of that lot is a fence with a gate, which when closed leaves a small opening between it and the post of the fence. Bay Street has a dirt and gravel surface and is graded to a width of twelve feet. On the west side of this street, across from the Jefferson home, is a small store owned and operated by the Jeffersons. The store sits back from the street more than sixteen feet, thus allowing room for a car or truck to park in front of the store and off of the graded portion of the street. Fifteen feet south of the store is Love Avenue, a street fifteen feet in width. There is a parking area of about fifteen feet north of Love Avenue and south of the store building, which has a door also on that side. Nancy and John, at the time of the accident in question, had four small children ranging in ages from sixteen months to seven years, who regularly played in their front yard. Davis had been making deliveries of bottled drinks to the Jefferson store across the street twice a week for eight months, and he knew that these children played there, and that they also came across the street on numerous occasions to the store.
Shortly after two o'clock that afternoon, Davis drove the truck north on Bay Street and pulled it over on the left or west side of the street in front of the Jefferson store for the purpose of making a delivery of a case of bottled drinks. Approximately three to four feet of the right-hand side of the truck was jutting out on the graded portion of the west side of the street. When the truck drove up, Nancy left her house where the children were playing, closed the gate, and went across to the store to receive the delivery. After she had paid Davis for the drinks, he walked out to the truck, placed an empty case of bottles in the rear, got in the cab, and pulled off to the right and north of the street without looking to see whether anyone was in the street and to the right of his truck. He had driven only a short distance, perhaps not over 100 to 200 feet, before Nancy came to the door and saw Rushell's body near the center line of the street with her head and chest crushed on one side. There had been no other cars traversing this street during the period between her leaving the child in the yard and her coming back to the door and seeing the child in the street and the truck leaving.
H.H. Slade, town marshal, went to the scene and found a pool of blood in the street about six inches to the west of the center line. He asked Davis, who in the meantime had been notified of the child's death and had returned to the scene, where the truck had been standing. Davis showed him the place, and the truck's tracks. They followed the tracks out to where the pool of blood was located. At that point there was a blank space about fourteen inches in diameter where no tracks showed. The tracks then went north on the street.
(Hn 1) The only witness for defendant was Davis. He stated that when he came out of the store he got in his truck and drove off, but that he looked at the rear of the truck; and that when he came out of the store he could see under the truck. He got in on the driver's side. He admitted that when he drove up there were a lot of children running around and that he "didn't pay it any attention." He also said that he looked, but the jury was amply warranted in believing that he did not look carefully enough, that when Davis drove off he failed to keep a proper lookout for children at this particular locality, when he knew that they were playing there, and that he failed to look to the right and on the east side of the road as he pulled off. Moreover, photographs in the record warranted the jury in concluding that even if he had looked toward the bottom part of the truck as he walked out of the store, he could not have adequately seen whether there was a child on the other side. So the jury was justified in finding that Rushell had crawled through the gate, that Davis failed to keep a proper lookout for children in this locality and under these particular circumstances, and that his negligence in this respect was the proximate cause of the child's death. Moreover, the great weight of the evidence supports the finding that appellant's truck ran over Rushell as it pulled out into the street driving north. Gordon v. Lee, 208 Miss. 21, 43 So.2d 665 (1949).
(Hn 2) Appellants complain about the use by appellee's counsel in his closing argument of a chart on a blackboard outlining argumentatively appellee's claims as to the damages which the jury could consider. However, this previously has been decided adversely to appellant's contention. 4-County Electric Power Ass'n v. Clardy, 73 So.2d 144 (Miss. 1954); Sandifer Oil Company, Inc. v. Dew, 71 So.2d 752 (Miss. 1954).
(Hn 3) It was error for the trial court to admit testimony for plaintiff as to other accidents in which Davis allegedly was involved. This could have been admissible to obviate the necessity of proving agency, under the rule that where one entrusts a vehicle to one known to be a reckless driver, the former is responsible for the acts of the driver, although the driver was not about the owner's business. But in this case appellants' answer admitted that Davis was within the scope of his employment at the time and place in question, and Davis so testified.
(Hn 4) Several instructions were granted appellee-plaintiff by the trial court which we think constituted reversible error. Plaintiff's instruction No. 4 told the jury in substance that if it believed there was a large parking space on the south side of the store and that the failure of Davis to park his truck therein was negligence, and if said negligence was the proximate cause of the death, then it could find for plaintiff. Of course there probably would have been no accident if the truck had been parked on the south side, but the failure to do that was not negligence. The negligence must be that which was done or omitted where defendant's truck was parked. The question is not whether he should have been somewhere else. This instruction authorized the jury to return a verdict for plaintiff even though it found that Davis was guilty of no negligence in doing what he did, provided the jury thought it was negligence not to have parked to the south of the store. So manifestly it was erroneous.
(Hn 5) Plaintiff's instructions Nos. 2, 7 and 9 failed to give the jury any guide as to what specific acts or omissions within the pleadings and proof were sufficient to constitute actionable negligence. For example, plaintiff's instruction No. 7 provided: "The Court instructs the jury that you do not have to know that the child was crushed by the Nehi Bottling Company truck but if you believe by a preponderance of the evidence that the child was killed by the Nehi truck because of the negligence of the defendants, if any, and if you believe by a preponderance of the evidence that the negligence of the defendants, if any, was the proximate cause of the child's death, then it is your sworn duty to find for the plaintiff in an amount that will fully compensate for all damages."
This type of instruction has been condemned in many cases. In Meridian City Lines v. Baker, 206 Miss. 58, 83, 39 So.2d 541 (1949), this comment was made: "The quoted instruction simply told the jury, in general terms, that it was the duty of the bus line to use reasonable care and caution in the operation of its buses so as to avoid injury to others, and it authorized the jury to find against the bus line if it believed from a preponderance of the evidence that a failure to exercise reasonable care proximately caused or contributed to the plaintiff's injury. By this instruction the jury was left to grope in the darkness, without any light to guide them, on the question of negligence of the bus line, and if in the nebulous maze of the wilderness the jury should grasp any act which it felt constituted a lack of reasonable care, it was authorized to adjudge the bus line guilty of negligence. It has been repeatedly held by this Court that in negligence cases the instructions must confine the deliberation of the jury to the ground or grounds of negligence alleged and which are supported by substantial proof."
The criticism is applicable to these three instructions, Nos. 2, 7 and 9. Nor did any instructions granted appellants cure those errors. It is true that plaintiff's instructions 6 and 10 were based on a failure to keep a proper lookout, but the three condemned instructions were not adequately related to the failure to keep a proper lookout, which was in fact the principal basis of this suit, along with the parking on the wrong side of the road. They were further obfuscated by the giving of plaintiff's instruction No. 4, discussed above, which erroneously submitted a negligence issue upon appellants' failure to park on the south side of the store.
(Hn 6) Plaintiff's instruction No. 3 was error, since there was no evidence to sustain a charge or finding that Davis was guilty of "a willful or a wanton disregard for the safety of persons . . ."
(Hn 7) Plaintiff's instruction No. 5 gives in the latter part of it a proper charge as to the failure to keep a lookout for small children, but there is no evidence that the truck "partially obstructed passage in said street", since the testimony shows that during the period in question there was no traffic to obstruct. The first part of this instruction is apparently incomplete, and is confusing.
(Hn 8) Appellants complain of the admission of the verdict of the coroner's jury. Although the verdict was not admissible, no objection was made to it, so no complaint can be made of that. But on a new trial, it should not be admitted in evidence. It recited "that Rushell Jefferson was crushed to death, probably by a Nehi Bottling Company truck driven by Claude Davis and that it was an accident." The object of a coroner's proceeding is to furnish prompt information which may guide officers in apprehending and prosecuting those who appear to have been connected with a supposed homicide, and, strictly speaking, it has no legal effect, being purely hearsay in nature. Blackwell v. State, 166 Miss. 524, 146 So. 628 (1933), discusses the reasons for its incompetency in a criminal case. See 26 Am. Jur., Homicide, Sec. 453. These objections are likewise applicable in a civil case of the present type. The general rule precludes the admission of a coroner's verdict in evidence in a civil action. 20 Am. Jur., Evidence, Sec. 997; 29 Am. Jur., Insurance, Secs. 1490, 1491. Supreme Lodge Knight of Honor v. Fletcher, 778 Miss. 377, 29 So. 523 (1900), held that in an action on a life insurance policy which expressly required the certificate of the coroner to be attached to the proof of death, the finding of the coroner's jury was admissible and prima facie evidence of the cause of death. However, that decision was based upon the peculiar terms of the bylaws and policy of the insurer, and its application is confined to the particular facts there involved. This limitation upon that case was recognized in the concurrent case of Fletcher v. Sovereign Camp Woodmen of the World, 32 So. 923 (Miss. 1902), where it was held that "the verdict of the coroner's jury was incompetent in this case as evidence of the cause of death." See also Columbian Mutual Life Assurance Society v. Harrington, 139 Miss. 826, 848-849, 104 So. 297, 301 (1925); Anno., 28 A.L.R. 2d 352, 365-367 (1953). Of course the testimony of the members of the jury as to admissions by Davis and what they observed at the scene was proper. The 1922 Town Ordinance was properly admitted in evidence.
We find no merit in any of the other assignments of error, but for the above stated serious errors in the giving of certain instructions to plaintiff, and the admission of testimony as to prior accidents, the case must be and it is reversed and remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Roberds, P.J., Lee, Arrington and Gillespie, JJ., concur.