Opinion
No. 43148.
October 19, 1964.
1. Carriers — negligence — sudden stop — alleged injury to passenger.
In action for injuries allegedly sustained by passenger in bus accident, conflicting evidence, including showing that passenger did not complain to any bus company representatives after alleged sudden stop of bus, and that passenger had sustained injuries in a separate, subsequent automobile accident did not require peremptory instruction for passenger, nor was verdict for bus company and driver against great weight of evidence.
2. Witnesses — cross-examination — with reference to separate subsequent accident wherein plaintiff was injured.
In bus passenger's action for injuries allegedly sustained when bus allegedly made sudden stop, trial judge did not abuse discretion in allowing, to extent to which complaint was made, cross-examination of passenger with reference to another incident in which she was injured in an automobile accident subsequent to occurrence of bus accident.
Headnotes as approved by Lee, C.J.
APPEAL from the Circuit Court of Covington County; HOMER CURRIE, J.
Allred Adams, Collins, for appellant.
I. The undisputed evidence shows that plaintiff's injuries were proximately caused or contributtd to by the failure of the defendant, Richard M. Calhoun, to observe the standard of care owed to the plaintiff as a passenger for hire on a common carrier. Evans v. Jackson City Lines, 212 Miss. 895, 56 So.2d 80; Teche Lines v. Britt, 176 Miss. 681, 170 So. 294.
II. The Court erred in granting, and in refusing to grant the instructions, which read as follows: "The Court further instructs the jury that defendants were not the insurers of the safety of the passengers on the bus in question, and if you believe from the evidence that at the time of the accident in question the defendant Calhoun was operating the bus he was driving as a person of ordinary care and prudence would have operated the same under like or similar circumstances, then it is your sworn duty to find for the defendants";
"The Court instructs the jury for the defendants that the word `negligence' as used in these instructions means the doing of something that a person of ordinary prudence would not have done under like or similar circumstances, or the failure to do something which a person of ordinary prudence would have done under like or similar circumstances: and the Court further charges you that the burden of proof in this case is on the plaintiff, to prove her case by a preponderance, that is, the greater weight of the believable evidence, and unless the plaintiff has so proven to you by a preponderance of the evidence introduced in this case that the defendants were guilty of negligence which contributed to the accident, then your verdict in this case must be for the defendants";
"The Court instructs the jury for the plaintiff, Mrs. Elvira Pickering, that the driver of a common carrier for hire is required, under the law of the State of Mississippi, to exercise a high degree of care to observe traffic lights and traffic signs along the public highways and, if you believe from a perponderance of the evidence in this case that the defendant, Richard M. Calhoun, failed to exercise such high degree of care to see a `signals ahead' sign or to see a stop light on the highway on the occasion in question, and if you further believe from a perponderance of the evidence that such failure, if any, proximately caused or contributed to the injuries, if any, of the plaintiff, then it is your sworn duty to find for the plaintiff, Mrs. Elvira Pickering, against both defendants, Continental Southern Lines, Inc., and Richard M. Calhoun"; and
"The Court instructs the jury for the plaintiff, Mrs. Elvira Pickering, that the driver of a common carrier for hire is required under the law of the State of Mississippi to exercise a high degree of care in stopping or reducing the speed of his vehicle and if you believe from a perponderance of the evidence in this case that the defendant, Richard M. Calhoun, failed to exercise such high degree of care on this occasion and that such failure, if any, proximately caused or contributed to the injuries, if any, to the plaintiff, then it is your sworn duty to find for plaintiff, Mrs. Elvira Pickering, against both defendants, Continental Southern Lines, Inc., and Richard M. Calhoun". Bridges v. Crapps, 214 Miss. 126, 58 So.2d 364; Evans v. Jackson City Lines, supra; Herod v. Carroll County, 171 Miss. 217, 157 So. 533; Jackson v. Leggett, 186 Miss. 123, 189 So. 180; Teche Lines v. Britt, supra; 53 Am. Jur., Trial, Sec. 557.
III. The lower court committed prejudicial error in permitting counsel for the defendants to interrogate the plaintiff on cross-examination, concerning her employment of a lawyer, her settlement of, and the amount of the settlement of a claim for a previous, unrelating injury. Anno. 42 A.L.R. 2d 593.
IV. Trial court committed prejudicial error in permitting the introduction of Exhibits 6, 7 and 8 to the cross-examination of the plaintiff, and in permitting the cross-examination of the plaintiff with respect thereto. Citizens Bank of Coldwater v. Callicott, 178 Miss. 747, 174 So. 78; Metropolitan Life Insurance Co. v. McSwain, 149 Miss. 455, 115 So. 555; Pevey v. Alexander Pool Co., 244 Miss. 25, 139 So.2d 847.
V. The Court erred in giving the instruction for the defendants, which is as follows: "The Court instructs the jury for the defendants that the phrase `preponderance of the evidence' means that evidence which is most consistent with the truth as measured by the experience and judgment of the jury; that which accords best with reason and probability. It depends upon the weight and credibility that should be given to the witnesses. It is that evidence which, after examination, has the greater persuasive and convincing power; that which satisfies your minds as jurors". Gulf Oil Corp. v. Thatch, 240 Miss. 117, 126 So.2d 501. Roger C. Landrum, Jackson; John D. Kervin, Jr., John K. Keyes, Collins, for appellees.
I. It is for the jury to decide as a matter of fact, and not for the Court to decide, as a matter of law, whether a reasonably prudent carrier in similar circumstances would exercise greater or lesser diligence in the performance of its duty of due care owed to passengers, than would a reasonably prudent person engaged in other pursuits not involving the risks inherent in a common carrier business. Frelmont v. City of Detroit, 121 N.W.2d 918; Teche Lines v. Britt, 176 Miss. 681, 170 So. 294.
II. It is generally agreed that a common carrier of passengers is not required to exercise the utmost degree of care which the human mind is capable of imagining or which men are capable of exercising, but rather the highest degree of practicable care and diligence that is consistent with the mode of transportation and the normal prosecution of its business. 14 Am. Jur., Carriers, Sec. 916 p. 349.
This was a suit by Mrs. Elvira Pickering against Continental Southern Lines and its driver, Richard M. Calhoun, to recover damages for personal injuries, allegedly sustained by her as a result of negligence of the defendants in the operation of a bus. Issue was properly joined and the jury found for the defendants.
Mrs. Pickering testified that, on August 22, 1961, she was one of a group of members of the Mississippi Demonstration Council, which had chartered a bus of the defendant company for a trip throughout parts of the United States and Canada. The ladies had been instructed to bring their lunches for the noonday meal. Near Russell, Mississippi, while standing in the aisle of the bus, about 11:30 A.M. for the purpose of securing her lunch from an overhead rack, she said that the brakes were suddenly slammed on and the bus pitched and lurched, causing her to be thrown against the seats and into the aisle, thereby producing the injuries for which she sued. She said that she made complaint to the woman in charge of the group, but it was not shown that she made any complaint to any representative of the bus company. Several witnesses testified that they saw her fall, but that she got up without assistance. Besides, she continued the trip and, on the tours, walked like the other passengers, and received no medical treatment during the entire trip.
Richard M. Calhoun, the driver of this bus, called as an adverse witness, said that he had driven on this particular highway, being U.S. 80, eight or ten times each year for the past ten years. The bus, about 150 feet behind a van or truck and trailer combination, was traveling about 40 to 45 miles per hour. The van began to slow down and the speed of the bus was reduced accordingly, and was proceeding at 5 to 10 miles per hour as the bus passed under the traffic light. He did not recall seeing the road sign, west of the stop light. The van prevented his seeing the stop light itself.
The evidence for the defendants was to the effect that the application of the brakes was the usual and ordinary effort to slow down and stop; that there was no violent lurch of any kind, but that the speed was gradually reduced in accordance with the reduction of speed by the van which was ahead of it. The driver did admit that he applied the brakes perhaps slightly quicker than in making an ordinary stop. It was not shown that any other passenger was injured; besides, no complaint thereof was made by anyone else. The evidence for the defendants was that at no time thereafter did they have an inkling from the plaintiff that she had sustained an injury.
The evidence showed that, about six months later, the plaintiff sustained injuries in an automobile wreck and that a complaint thereon was settled before the institution of the present suit. There was testimony to the effect that there was great similarity between the alleged injuries, sustained in the bus incident and those which were sustained in the car wreck.
The evidence as to the suddenness of the reduction of speed, and as to the cause of the alleged injuries in the bus incident, and those in the car wreck was in hopeless dispute.
(Hns 1, 2) On her appeal, Mrs. Pickering claims that (1) she was entitled to a peremptory instruction; (2) the verdict was against the great weight of the evidence; (3) that the instructions were in conflict; and (4) reversible error was committed in the cross examination of Mrs. Pickering by defense counsel with reference to another incident when she was injured in a car wreck.
From the foregoing statement of facts the first two assignments are clearly without merit.
After due consideration of the other assignments of error, the Court is of the opinion that the instructions, when read and considered together, presented no real conflict; and that the trial judge did not abuse his discretion in allowing appellant's cross-examination to the extent to which complaint is made. If there was, in fact, error in the trial of this cause, the Court finds that it was harmless.
It therefore follows that the judgment of the trial court should be, and it is, affirmed.
Affirmed.
Ethridge, Gillespie, Rodgers, and Jones, JJ., concur.