Opinion
No. 31011.
February 5, 1934. Suggestion of Error Overruled March 19, 1934.
1. APPEAL AND ERROR.
Instruction permitting jury to consider plaintiff's contributory negligence, if any, in diminution of damages, where not pleaded, if error, held harmless where jury found plaintiff's negligence was sole proximate cause of injury (Code 1930, sections 511, 512).
2. AUTOMOBILES.
Statutory presumption of negligence on part of party shown to have violated motor vehicle law disappears when all facts and circumstances on issue of liability are in evidence (Code 1930, sections 5569, 5581, 5588).
3. AUTOMOBILES.
Court may, notwithstanding all facts regarding automobile collision are in evidence, instruct jury that violation of motor vehicle statute by defendant is negligence and entitles plaintiff to recover where it is proximate cause of injury, or that violation of statute by plaintiff which is sole proximate cause of injury defeats plaintiff's recovery (Code 1930, sections 5569, 5581, 5588).
4. AUTOMOBILES.
Instruction that plaintiff, if exceeding speed permitted by statute, was prima facie negligent, held erroneous, where all facts and circumstances of collision were in evidence, since violation of statute would not prevent recovery unless it was sole proximate cause of collision (Code 1930, section 5569).
5. EVIDENCE.
Party must lay foundation for introduction of evidence of admissions only when evidence is introduced to impeach witness other than party to litigation.
6. TRIAL.
Party having burden of proof and duty to open case must in opening, and before he rests, introduce substantive evidence relied on to establish case.
7. TRIAL.
Whether evidence offered in rebuttal should have been introduced as substantive evidence rests largely in trial court's discretion.
8. TRIAL.
Court should resolve every doubt on whether evidence offered in rebuttal belongs to evidence in chief in favor of reception, where it will not give undue weight and opposite party would be as well prepared to meet it by surrebuttal as if offered in chief.
APPEAL from Circuit Court of Hinds County.
Wells, Wells Lipscomb, of Jackson, for appellant.
We submit that where there has been no plea filed of contributory negligence and contributory negligence is not shown by the plaintiff in the testimony offered by him, the defendants cannot avail themselves of any contributory negligence of the plaintiff.
The defense of contributory negligence is an affirmative defense and must be plead and prove by the defendant in order for the defendant to avail himself of it, unless the contributory negligence is shown by the testimony offered by the plaintiff.
5 Enc. of Pleading and Practice, page 10; 45 C.J. 1115, 1117; McMurtry v. Louisville, New Orleans Texas Ry. Co., 67 Miss. 601; Morris v. Brookhaven Pearl River Railroad Co., 88 Miss. 539; Kress Co. v. Markline, 117 Miss. 37, 77 So. 858; Mobile Ohio R. Co. v. Campbell, 114 Miss. 803, 75 So. 554; Seaboard Air Line R. Co. v. Moore, 228 U.S. 433, 33 Sup. Ct. 580, 57 L.Ed. 907; Yazoo M.V.R. Co. v. Lucken, 137 Miss. 572, 102 So. 393; Gulf S.I.R. Co. v. Saucier, 139 Miss. 497, 104 So. 180; Simms v. Forbes, 86 Miss. 412; Miss. Central Railroad Co. v. Hardy, 88 Miss. 732; Bessler Movable Stairway Co. v. Bank of Leakesville, 140 Miss. 537; Saenger Amusement Co. v. Murray, 128 Miss. 782, 791.
The lower court erred in granting to defendant the instruction which appeared as instruction number five, which instruction is as follows: "The court instructs the jury for the defendants that if you believe from the evidence that G.B. White was driving his car at the time of the accident at a rate of speed in excess of forty (40) miles an hour then the said G.B. White is prima facie guilty of negligence."
New Orleans G.N.R. Co. v. Walden, 133 So. 241; 1 Elliott on Evidence, par. 90; Gulf M. N.R. Co. v. Brown, 138 Miss. 39, 102 So. 855; Columbus G.R. Co. v. Fondren, 145 Miss. 679, 110 So. 365; Davis v. Temple, 129 Miss. 6, 91 So. 689; Columbus G.R. Co. v. Lee, 149 Miss. 543, 115 So. 782; Natchez Coca-Cola Bottling Co. v. Watson, 133 So. 677, 160 Miss. 173.
The plaintiff offered in rebuttal a witness by the name of Henry Riser, chief deputy sheriff of Hinds county, Mississippi, by which witness the plaintiff undertook to show that the defendant, N. Weitz, on the afternoon of the accident, in the office of Mr. Riser had made a statement as to how the accident happened, contradictory and different to that to which he testified. Upon objection of the defendant, this witness was not allowed to testify.
We do not know of any rule of law at any place that holds that the defendant is exempt from impeachment any more than any other witness; and all of the courts hold that the defendant may be impeached the same as to any other witness by showing that he had made statements different to that to which he has testified.
10 Ency. of Pleading Practice, page 286; Nutter et al. v. O'Donnell et al., 6 Col. 253; Abram Kelsey v. Belle M. Layne, 28 Kan. 218; 1 Greenl. Ev. (13 Ed.), par. 462.
Powell, Harper Jiggitts, of Jackson, for appellees.
The giving of defendant's instruction No. 1 on contributory negligence was not reversible error. Under our statute on contributory negligence it was proper.
Section 511, Code of 1930.
As a matter of law it is the duty of the jury to diminish the damages where there is contributory negligence. The statute specifically uses the word "shall."
Section 511, Code of 1930; G. S.I.R.R. Co. v. Saucier, 139 Miss. 497; Goodman v. Lang, 159 Miss. 204, 130 So. 50; Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356.
The court did not err in granting instruction No. 5 for the defendants.
We would call Your Honor's particular attention to the instruction complained of. It does not call into operation a statutory presumption as does the Walden case. The instruction in this case tells the jury that they must find certain facts and that if they then find certain facts, that the law is that on those facts the appellant was prima facie guilty of negligence. This is entirely different from the calling into operation of the statutory presumption condemned in the Walden case.
McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 146 So. 877.
Objection to testimony of Henry Riser was properly sustained.
28 R.C.L. 633, secs. 219, 221; Fulton v. Hughes, 63 Miss. 61; Bonelli v. Bowen, 70 Miss. 142; Miss. Utilities Co. v. Smith, 145 So. 896, 166 Miss. 105, 117; Miss. Central R.R. Co. v. Robinson, 106 Miss. 896, 64 So. 838; Bradley v. Howell, 161 Miss. 346, 354.
Appellant brought this action in the circuit court of the First judicial district of Hinds county against appellees to recover the sum of ten thousand four hundred dollars for personal injuries received by him, and damage to his automobile, caused by a collision between appellant's automobile, driven by him, and the automobile of appellee Weitz, driven by him while in the employ and engaged about the business of his principal, appellee Edward J. Moore Sons, Inc. The collision was alleged to have been caused by the negligence of appellee Weitz in operating his car. There was a trial, resulting in a verdict and judgment in favor of appellees; from that judgment appellant prosecutes this appeal.
Appellant was driving his car north on the Pocahontas road, in the country about three miles north of the city of Jackson. Appellee Weitz was going south in his car. A car was parked on the west side of the paved highway. The cars driven by appellant and Weitz, in trying to pass this parked car, collided, resulting in the personal injuries and damages sued for. The evidence demonstrated that the collision of the cars could not have been an accident, but was the result of the sole negligence of one or the other of the drivers.
The evidence for appellant, if true, showed that the collision was caused by the sole negligence of appellee Weitz, while the evidence for appellees, if true, showed that it was the result of the sole negligence of appellant. The case was tried on that theory. That theory was embodied in appellant's instructions to the jury. In returning a verdict for appellees the jury necessarily found that the sole proximate cause of the collision was the negligence of appellant, and therefore appellee Weitz was not guilty of any negligence whatsoever proximately contributing to the collision.
Appellees plead the general issue alone. Appellant assigns and argues as error the giving of the following instruction for appellees: "The court instructs the jury for the defendant that if you believe from the preponderance of the evidence the negligence of the defendant, Weitz, was not the sole proximate cause of the accident but if you further believe from the evidence that any negligence of the plaintiff White contributed to the accident that then if your verdict is in favor of the plaintiff it shall be the duty of the jury to reduce the damages awarded the plaintiff in the same proportion that you believe from the evidence that any negligence of the said White contributed to the accident."
Appellant's argument is that it was error to give this instruction, because appellees did not specially plead contributory negligence. Sections 511 and 512 of the Code of 1930 provide that contributory negligence shall not bar a recovery, but shall diminish plaintiff's damages in proportion to his negligence, and that all questions of negligence and contributory negligence shall be for the jury. Appellant refers to numerous decisions of our court and the courts of other jurisdictions holding that contributory negligence must be specially pleaded when relied on as a defense to the action. It will be observed from the instruction that appellees were not invoking contributory negligence as a defense to the action, but in diminution of the damages, as authorized by our comparative negligence statute (section 511, Code 1930). Conceding, without deciding, that appellant's contention is sound, nevertheless the giving of the instruction was without any harm whatever to appellant, because in rendering their verdict for appellees the jury found that appellant's negligence was the sole proximate cause of the injury. The instruction, therefore, did not come into use at all; the jury never reached the point of using it; there were no damages to be mitigated according to the verdict of the jury.
Appellant assigns and argues as error the giving of another instruction for appellees, which reads as follows: "The court instructs the jury for the defendants that if you believe from the evidence that G.B. White was driving his car at the time of the accident at a rate of speed in excess of forty (40) miles an hour then the said G.B. White is prima facie guilty of negligence."
Section 5569, Code 1930, provides, among other things, that the maximum rate of speed of motor vehicles in the country shall be forty miles an hour. Section 5581, Code 1930, provides that a violation of section 5569 and other sections of the Code regulating the manner of operating motor vehicles shall constitute a misdemeanor punishable by fine or imprisonment or both. Section 5588, Code 1930, provides as follows: "Nothing in this chapter shall be so construed as to curtail or abridge the right of any person to prosecute a civil suit for damages by reason of injuries to person or property resulting from the negligent use of the highways by any motor vehicle, or its owner, or his employee or agent. And in any action brought to recover any damages, either to person or property, caused by running or operating such motor vehicle in violation of any of the provisions of this chapter, the plaintiff or plaintiffs shall be deemed to have made out a prima facie case by showing the fact of such injury, and that such person or persons operating, or causing to be run or operated, such motor vehicle, was at the time of the injury running or operating, or causing the said motor vehicle to be run or operated in a manner contrary to the provisions of this chapter."
Appellant's position with reference to this instruction is that all facts and circumstances of the collision were in evidence and, therefore, under New Orleans G.N.R.R. Co. v. Walden, 160 Miss. 102, 133 So. 241; Natchez Coca-Cola Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677, and other decisions of this court, the statutory presumption of negligence disappeared, and in such a case the jury had no right to consider such presumption but should have decided the issue of fact alone on the evidence. The Walden case and the Coca-Cola case, as well as the other cases relied on by the appellant, were all cases in which the statutory presumption was invoked by the plaintiff and not by the defendant, as in this case. Nevertheless, we are unable to see why the same principle does not apply. The statutory presumption of negligence on the part of the plaintiff disappears, as it does on the part of the defendant, when all the facts and circumstances on the issue of liability are in evidence. In the Coca-Cola case the court held that the prima facie liability arising, under section 5588, Code 1930, from driving a motor vehicle in violation of section 5569, disappeared where the facts and circumstances were in evidence, and therefore the court committed no error in refusing an instruction for the plaintiff invoking the statutory presumption of negligence. If the instruction in question had gone further and told the jury that if the preponderance of the evidence showed that the violation of the statute was the sole proximate cause of the injury they should find for appellees, it would not have come under the condemnation of the Walden and Coca-Cola cases. It is the prima facie presumption of the statute that cannot be used on the issue of liability where the facts and circumstances are in evidence. That does not mean, however, that the court cannot instruct the jury for the plaintiff that a violation of the statute by the defendant is negligence, and where such negligence is the proximate cause of the injury the plaintiff is entitled to recover, or, on the other hand, instruct the jury on behalf of the defendant that if the violation of the statute by the plaintiff was the sole proximate cause of the injury the plaintiff is not entitled to recover. It is the statutory presumption of negligence standing alone that neither party is entitled to use as a witness where all the facts and circumstances are in evidence.
A like construction has been put upon section 6130, Code 1930, the statute prescribing the maximum rate of speed of railroad trains in municipalities. Excessive speed must be the proximate cause of the injury. Clisby v. M. O. Ry. Co., 78 Miss. 937, 29 So. 913; I.C.R.R. Co. v. Watson (Miss.), 39 So. 69 (not reported [in State report]); Brinkley v. Southern Ry. Co., 113 Miss. 367, 74 So. 280; Vicksburg, etc., R. Co. v. McGowan, 62 Miss. 682, 52 Am. Rep. 205; M. O. Ry. Co. v. Stroud, 64 Miss. 784, 2 So. 171. The giving of this instruction was harmful. Under the conflicting evidence on liability the jury may have placed in the scales appellant's violation of the speed statute and given it such weight as to control their verdict in appellees' favor. This they were not authorized to do. Appellant's violation of the statute alone would not prevent his recovery, unless it was the sole proximate cause of his injury.
Appellant offered one Riser as a witness in rebuttal, by whom he undertook to show that appellee Weitz, on the afternoon of the collision of the cars, made a statement to him as to how the collision occurred, which was contradictory to that testified by him as a witness in his own behalf. Upon appellees' objection the court refused to permit the witness to so testify. Appellant thereupon requested permission to recall appellee Weitz for the purpose of laying the predicate for his contradiction by Riser, which the court refused to permit. The principles laid down in the recent case of Roney v. State (Miss.), 150 So. 774, govern here. In that case the court held that the rule requiring the laying of the foundation for the introduction of evidence of admissions is operative only when the evidence is introduced to impeach a witness other than a party to the litigation; that a party having the burden of proof and duty to open the case must, in his opening and before he rests, introduce the substantive evidence relied on to establish his case; that whether evidence offered in rebuttal should have been introduced as substantive evidence rests largely in the trial court's discretion; that the court should resolve every doubt, whether the evidence offered in rebuttal belongs to evidence in chief, in favor of its reception, where it will not give undue weight, and the opposite party would be as well prepared to meet it by surrebuttal as if offered in chief.
The other assignments of error are minor in importance and involve questions of such a character as on another trial will probably disappear.
Reversed and remanded.