Summary
In Wilburn v. Gordon, 209 Miss. 27, 45 So.2d 844 (1950), it was held that the trial court erred in giving a charge that a failure on the part of the plaintiff to give a proper signal before stopping was negligence per se because it was admitted that the plaintiff's car was equipped with a working stop light which was visible to the defendant.
Summary of this case from Box v. SwindleOpinion
No. 37473.
April 24, 1950.
1. Negligence — comparative negligence statute — instructions.
An instruction in an action for damages which told the jury that if the plaintiff and the defendant were equally negligent, the verdict should be for the defendant was erroneous in that it was contrary to the comparative negligence statute under which, if both were equally negligent, the defendant would not be absolved from all liability but the plaintiff's damages would be reduced by fifty per cent. Sec. 1454 Code 1942.
2. Negligence — instructions — no guide to what is negligence.
In an action for damages to plaintiff's automobile an instruction was given that if from the evidence both the plaintiff and the defendant were negligent the jury should find for the defendant or diminish plaintiff's damages was erroneous, first, because it contained a repetition in part of the error in the instruction next above pointed out, and, second, because it gave no guide to the jury to enable them to judge what is negligence in the case or to appraise it.
3. Instructions — referring jury to declaration.
Although it is error in an instruction to refer the jury to the declaration for the hypothesis upon which to act, yet when another consistent instruction correctly incorporated the hypothesis omitted from the challenged instruction there will be no reversal.
4. Instructions — must be based on substantial evidence — automobile signal lamp.
In an action for damages to plaintiff's automobile by its being rammed from the rear by defendant's truck, an instruction which charged the jury that they should find that the plaintiff was negligent if he stopped or slowed up without giving the proper signals is erroneous as supported by no substantial evidence, when the proof was undisputed that plaintiff's automobile was equipped on its back end with a statutory signal lamp in good working order. Sec. 8193 Code 1942.
5. Damages — absence of proof of amount, effect of.
When in an action for unliquidated damages an account of the alleged negligent injury to plaintiff's automobile by defendant's truck, one of the declared items of damage was the loss of the use of the automobile but no proof was made as to the amount of that item of the damages an instruction was properly given that plaintiff could not recover therefor.
6. Instructions — must be based on facts in evidence.
In an action for damages to plaintiff's automobile by defendant's truck an instruction based on the assumption that the brakes on defendant's truck were not efficient was properly refused when there was no such evidence in the case.
7. Instructions — motor vehicle — following too closely behind.
In an action for damages to plaintiff's car by its being rammed from the rear by defendant's truck, plaintiff was entitled to a requested instruction which would have submitted to the jury the question whether defendant's truck followed plaintiff's automobile more closely than was reasonable and prudent having due regard to the speed of the vehicles and the traffic upon, and the condition of, the highway. Sec. 8188(a) Code 1942.
8. Instructions — curative instruction.
The refusal of a correct instruction is not cured by the fact that another instruction granted included the same matter when the latter covered also a different and additional point, and was not, therefore, a duplication.
Headnotes as approved by Smith, J.
APPEAL from the circuit court of Lowndes County; JOHN D. GREEN, Judge.
Ben Owen and Roger C. Landrum, for appellant.
I. The court instructed the jury that the plaintiff could not recover if he and the defendant were found to be equally negligent. Yet Section 1454 Code 1942 permits recovery in all events, provided there is any negligence on the part of the defendant that proximately contributed to the plaintiff's injury. Yazoo M.V.R. Co. v. Williams, 114 Miss. 236, 74 So. 835; Gulf, M. N.R. Co. v. Arrington, 107 So. 378; Cumberland Telephone Telegraph Company v. Cosnahan, 105 Miss. 615, 62 So. 824.
II. Appellant complains of the following instruction: "The court instructs the jury for the defendant even if you may believe from a preponderance of the evidence that the defendant was guilty of negligence, if you also believe that the plaintiff was negligent too, then it is your duty to find for the defendant or to diminish plaintiff's actual damages in such proportion as plaintiff's negligence, if any, may have contributed to the accident."
There is manifest error in this instruction in two respects:
First, in telling the jury that if they believed the defendant to be "guilty of negligence" they had the alternative of finding for the defendant, the instruction contravened the above mentioned contributory negligence statute, and left to the jury a choice of finding for the defendant or of diminishing the damages. No choice should have been given them because under the statute as interpreted by the above cited decisions, if the defendant is negligent and his negligence was a proximate cause of the accident, the plaintiff is entitled to a verdict, regardless how small it may be. There can be a verdict for the defendant only if he is free of negligence or if his negligence did not proximately contribute to the accident.
Second, the instruction is erroneous in that it does not specify wherein the jury must believe the plaintiff to be negligent if it is to "find for the defendant or . . . diminish the plaintiff's actual damages." Merely telling the jury that the plaintiff's negligence may be held against him without specifying what acts of negligence are referred to permits the jury to bring in any and all negligence that the plaintiff might ever have been guilty of, regardless of its connection with the accident in the instant case.
". . . If you believe that the plaintiff was negligent too, then, it is your duty to find for the defendant . . ." Negligent in what respect? The instruction does not tell in what respect; it refers to negligence generally and gives loose fancy scope to range. The jury was left free, each man for himself, to pick out any detail wherein the plaintiff might have been negligent. Is it negligence for a one-eyed man to drive an automobile? If so, the jury could find for the defendant in this case, because the plaintiff had but one eye. Is it negligence for a man over 65 to drive a car? If so, the defendant could get a verdict, because the plaintiff here was over 65. Is it negligence to drive an automobile at all in a heavy rainstorm? If so, the defendant can prevail, for it was pouring down rain when this accident occurred.
In McDonough Motor Express, Inc. v. Spiers, 180 Miss. 78, 176 So. 723, in reversing the lower court, the Supreme Court said: "It was the duty of appellee to have the court inform the jury what was necessary to make out the case stated in the declaration. This was not done. There was no obligation on the part of appellant to do it. The jury were left entirely at sea as to what character of negligence was necessary to be proved in order to authorize appellee to recover; just any negligence was sufficient under appellee's instructions, provided it proximately contributed to the collision."
III. The third assignment complains of the following instruction:
"The court instructs the jury for the defendant that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence not only that the defendant was negligent in the manner charged in the declaration, but that such negligence was the proximate cause of the accident, and unless you believe both propositions by a preponderance of the evidence, then it is your duty to find for the defendant."
This instruction is manifestly erroneous in two respects:
First the jury were thus told that unless the plaintiff proved the defendant's negligence to be the proximate cause of the accident, there could be no recovery. But the law is that if the defendant's negligence is a proximate cause of the injury, he is liable for the entire damages, provided that this amount is decreased by the percentage of the plaintiff's negligence in accordance with Section 1454 Code 1942 as aforesaid.
Second, the instruction is erroneous in that the jury were told that the plaintiff must prove "that the defendant was negligent in the manner charged in the declaration"; so the jury had to go to the declaration to see what negligence was necessary to sustain a verdict for the plaintiff.
In Lanham v. Wright, 164 Miss. 1, 142 So. 5 the Court found error in the following instruction:
". . . the plaintiff is not entitled to recover anything unless you believe, by a preponderance of the evidence, that there was, as set forth in plaintiff's declaration, an actual or express agreement to marry, and that defendant breached that alleged contract in the manner set forth in the plaintiff's declaration."
And it stated its finding thus: "The above instruction given for the defendant referred to the declaration for the hypothesis upon which the jury could rely instead of a hypothesis in the instruction itself. We have often condemned this practice. The declaration is usually couched in technical and complicated language. The facts of the case should be clearly and simply stated in the instructions, for the jury to more easily understand it, rather than referring them to the declaration to decipher the facts from it."
So it is error per se to send the jury to the declaration to determine what the plaintiff had to prove. It is very likely that the jury in this case never considered the declaration at all in reaching their verdict, but let us assume that they did. What did they encounter? Examining the pleadings they found not only the declaration proper, but also two amendments thereto and two bills of particulars. If they diligently waded through all of these, they found that the plaintiff had set out four specific grounds of negligence:
(1) not maintaining a proper lookout to the front,
(2) slowness in applying brakes,
(3) driving with improper brakes,
(4) following the plaintiff's automobile too closely.
Suppose the jury after examining the declaration, the two amendments, and the two bills of particulars, were convinced the defendant was guilty on only one of the four grounds, but innocent on the other three. Who would be entitled to the verdict then? By that time jurors would likely be flipping coins or saying eenie-meenie-minie-mo to decide whether it should decide for the plaintiff or the defendant.
If the defendant was guilty of any negligence at all, if that negligence was alleged by the plaintiff in the declaration or amendments thereto, and if it contributed proximately to the accident, the plaintiff is entitled to recover. But the instruction requires the defendant to be negligent "in the manner charged in the declaration" and is clearly erroneous in so doing, in addition to requiring that the plaintiff prove the defendant's negligence to be the proximate cause of the accident.
IV. "The court instructs the jury for the defendant that a person driving upon the highway is required by law, before stopping or suddenly decreasing the speed of his automobile, to give a proper signal of such intention, and if you believe from the evidence in this case that the plaintiff so stopped or decreased his speed without giving such proper signal, then you must find that the plaintiff was negligent."
The above instruction, which was given as instruction Number 7 for the defendant, and is cited by the appellant as the fourth assignment of error, tells the jury that a driver must give a "proper" signal before stopping or suddenly decreasing his speed. Again the jury's imaginations were turned loose to run wild — this time as to what a "proper" signal is.
The plaintiff plainly stated on cross-examination that he did not give an arm signal when he slowed down, and that fact was before the jury. Realizing this, the defendant first asked for an instruction Number 7 to the effect that it was negligence to stop without giving an arm signal. When the instruction was rightfully refused by the court, the defendant then took the next most advantageous course and obtained this vague instruction about the "proper" signal, knowing that there would likely be wide latitude in the minds of the 12 jurors as to what the "proper" stopping or slowing-down signal is. Some of them might believe that the only "proper" signal is extending the arm from the window of the car; others might think that the arm should be extended at a certain angle, and others the arm had to be extended at a certain interval of time before applying the brakes. But Section 8193 Code 1942 clearly provides that the signal may be given "either by means of the hand or arm or by a signal lamp."
The plaintiff did have a signal lamp on the back of his car and proved that it functioned. If the defendant had obtained the instruction the law required, it could only have led the jury to the conclusion that the plaintiff had given the "proper" signal. Therefore, he resorted to twisting his instruction into a charge so prejudicial, general, and vague that it clearly constitutes reversible error.
V. Instruction Number 8 for the defendant is as follows:
"The court instructs the jury for the defendant that the plaintiff can not recover in this case any damages whatever for the loss of the use of his automobile."
The instruction is unique in that another instruction identical with it was refused for the defendant.
Furthermore, instruction Number 2 for the plaintiff told the jury that the plaintiff could recover damages for the loss of the use of his automobile, provided the jury believed the defendant to be negligent. The two instructions, one for the plaintiff, the other for the defendant, are conflicting, and they can not be reconciled; the verdict of the jury suggests that the one for the defendant was followed by them, and it should not have been given.
Blashfield in Section 3417 of his Cyclopedia of Automobile Law and Practice cites authorities and says, "In addition to the cost of repairs recoverable under the rule stated in the foregoing section as measure of damages for injuries to the automobile itself, the owner may recover, as an element of damage caused by the injury, the reasonable value of the use of the car in plaintiff's business, of which use he was deprived by the injury in question during the period reasonably necessary for the repairs."
The plaintiff in his testimony said that he was deprived of the use of his car from the time of the accident until some time in October. He stated further that the car was the only one he had to use on his farm and as superintendent of the Prairie School District and that he was considerably inconvenienced by not having it at his disposal. In his declaration the plaintiff alleged $100 to be his damages for "being deprived of the use of his said automobile for a period of more than one month", which sum constitutes a reasonable amount. The defendant nowhere contended that said sum was unreasonable or not allowable. In his answer which in effect is nothing more than a blanket denial of every allegation of the declaration, he "denies that plaintiff was damaged an additional $100, or any other amount, by being deprived of the use of his automobile for a period of more than one month."
The jury were reasonable men. The item of damage was nothing peculiar or unusual. The defendant never controverted it. Therefore, under the law it was allowable, and the giving of the peremptory instruction against it was prejudicial error.
VI. The appellant says he was entitled to the following instruction, which the court refused to give:
"The court instructs you for the plaintiff that the driver of any vehicle at all times is charged with having knowledge of the status of his vehicle's brakes which a reasonably prudent man should have. If the brakes of his vehicle become wet for any reason, preventing their proper functioning or decreasing their efficiency, and if a reasonably prudent man should have realized they were thus wet and not functioning properly, then the driver is required to take whatever steps a reasonably prudent man should take under the circumstances in order to avoid an accident."
The instruction merely states in clear and simple language what is required of the driver of a vehicle as far as the knowledge of the condition of his automobile's brakes is concerned. If a reasonably prudent driver should realize his brakes are wet and not functioning satisfactorily, then he must decrease his speed or be particularly watchful to his front or take whatever steps a reasonably prudent man should take under the circumstances. The care of a reasonably prudent man is what is required of all actors, be they motor vehicle drivers or whatnot.
"Negligence is the failure to take such reasonable care as is taken or should be taken by experienced and prudent men." Hammontree v. Cobb Construction Co., 168 Miss. 844, 152 So. 279.
"In every case of negligence, the circumstances under which an actor is placed, what an ordinarily prudent man would do or fail to do under the circumstances, must always be considered in connection with negligence." Mississippi Power Light Company v. Sumner Gin Company, 156 Miss. 830, 127 So. 284.
"The degree of care to be exercised (by motorist) is reasonable and ordinary care . . . or that which would be exercised by a prudent man in the particular situation." Section 632, Blashfield, op. cit.
"Negligence may be adequately shown by proof of the fact that the driver of an automobile failed to exercise that degree of vigilance in the operation of the vehicle which an ordinarily prudent person should have used under similar circumstances." Soda v. Marriott, 118 Cal.App. 635, 5 P.2d 675.
The plaintiff was entitled to the instruction after alleging that the defendant was "negligent in driving his truck with improper brakes", and it was error to refuse it.
VII. The seventh and last assignment of error contends that the court should not have refused following instruction for the plaintiff: "The court instructs you that the failure of any person to perform a duty imposed upon him by statute is negligence in itself. Therefore, should you find that the defendant, Lloyd Gordon, in his automobile truck immediately prior to and at the time of the collision referred to in the complaint, followed the vehicle in which the plaintiff, Saunders Wilburn, was riding, more closely than was reasonable and prudent, having due regard to the speed of such vehicles and the traffic upon and the condition of the highway upon which said cars were traveling, and that such failure on his part was a proximate cause of the collision with the plaintiff's car, then his conduct in so doing constituted actionable negligence."
The language of the requested instruction was taken directly from Section 8188 (a) Code 1942, which section is as follows: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."
In Teche Lines, Inc. v. Bateman, 162 Miss. 404, 139 So. 159, the Court said, "Every person driving a motor vehicle upon public highways is under duty to every other person traveling such highway . . . to operate the motor vehicles in accordance with statutes prescribing the rights and duties of persons upon such highways."
The plaintiff was entitled to the instruction, and court's refusal to give it constituted reversible error.
John H. Holloman and William J. Threadgill, for appellee.
I. The crux of appellant's first assignment of error is that one of appellee's instructions "in effect abrogates Mississippi's contributory negligence statute, Section 1454 Code 1942". The primary fallacy in appellant's position thereasto is that he attacks the instruction in the abstract, without reference to the other instructions which the jury received. Assuming, but only for the purpose of argument, that said instruction is objectionable, it can not be overlooked that it was followed, modified and complemented by appellee's instruction number six, in which the jury was told ". . . to diminish plaintiff's actual damages in such proportion as plaintiff's negligence, if any, may have contributed to the accident." This, we think, put the proposition squarely to the jury and rendered any objectionable feature, if any, of appellee's other instruction harmless.
Furthermore, it must be assumed that the jury was composed of reasonable men — not chuckleheads — and that they considered not one, but all the instructions together, and having so done were governed thereby in their deliberations. It may be that they found the evidence evenly balanced. If so, it was their duty to find for the defendant, for if the plaintiff resigns the burden of proving his case by a preponderance of the evidence, his cause must fail.
Instructions do not have to be technically accurate in all respects, for, generally speaking, the jurymen are laymen who attach no special significance to legal terms. They are men of ordinary and good common sense. As this Court said in Neely, et al. v. City of Charleston, 37 So.2d 495, "Substantial accuracy is all that is required in an instruction, and unless the court can see that the jury may have been misled, it will not reverse. (Citing Meridian Sanatorium v. Scruggs, 121 Miss. 330, 83 So. 532). The fact that an instruction is technically inaccurate will not alone cause a reversal of a judgment; but when the case on appeal is examined as a completed trial, and substantial error has not been committed and a fair and just result has been reached, the judgment will be affirmed, notwithstanding error in an instruction. (Citing City of Jackson v. Wright, 151 Miss. 829, 119 So. 315; Nelms Blum Co. v. Fink, 159 Miss. 372, 131 So. 817)."
II. Appellant's second assignment of error complains of the instruction by the defendant that if the jury found both the defendant and plaintiff guilty of negligence, they had the alternative of finding for defendant, or diminishing plaintiff's damages. Appellant has, of course, predicated his contention upon the bare assumption that defendant's negligence, if any, was a proximate cause of the accident — an assumption without basis in fact in the evidence, or, if so, resolved by the jury in defendant's favor.
Inasmuch as the jury found for the defendant, it is evident that they fully accepted defendant's version, which was that plaintiff, by his odd maneuverings on the highway, was the sole proximate cause of the accident. Therefore, it was not necessary for them to diminish damages.
Again, the jury considered the instruction complained of in conjunction with the others. Let us examine instruction number two for the plaintiff: "The court instructs you for the plaintiff that if you believe from a preponderance of the evidence that the defendant failed to keep a proper lookout to the front or was following the plaintiff at an imprudently close interval, and as a result thereof, collided with the rear of the plaintiff's automobile, damaging the automobile, then in that case the plaintiff would be entitled to recover for the actual cost of repairs to his automobile, in addition to such sum, if any is shown by the evidence, as he was damaged by being deprived of the use of his automobile, and such sum, if any is shown by the evidence, as his automobile decreased in market value after being repaired."
If appellant was eager for the jury to receive a precise statement of the law of negligence, as he now tries to make appear, why didn't he temper his instructions to that attitude instead of unequivocally stating that if defendant was negligent, (overlooking completely "proximate cause") plaintiff should be allowed to recover the actual cost of repairs, damage by being deprived of the use of his automobile, and the decrease in its market value? Appellant-plaintiff received here, as elsewhere, instructions far more favorable than he was entitled to under the law.
"Chapter two" of appellant's second assignment of error undertakes to argue that the same instruction fails to specify the negligence which the plaintiff must be guilty of in order for the jury to return a verdict for the defendant, or to diminish damages. In plaintiff's instruction number six he set out precisely what the plaintiff must do with regard to signaling in order not to be guilty of negligence, it being borne in mind that plaintiff testified that he did not give an arm signal that he was about to stop. And in plaintiff's instruction number seven the jury was told that a driver of an automobile "must anticipate and expect the presence of others, and if he fails to do so, he is guilty of negligence." Of course, plaintiff did not intend for this instruction to be so taken, but the reasonable interpretation is that this rule is true whether the "others" be in front of you or behind, and the jury undoubtedly so construed it in applying it to the plaintiff as well as to the defendant.
Appellant's closing argument in his second assignment of error expresses fear that the instruction "leaves the jury free to evolve a belief of the plaintiff's negligence not alone upon evidence before them, but also from their inner consciousness, from their intuition, from their subconscious minds, or from any source whatsoever. The essential thing is if they believe — no matter how or why or when the belief originated."
Taking appellant's complaint on appeal at its face value, however, the gist of which is that plaintiff's negligence was not defined, we believe that this assignment of error is completely without merit for other reasons too obvious to mention when considered with defendant's instruction number seven. This latter instruction reads, "The court instructs the jury for the defendant that a person driving upon the highway is required by law, before stopping or suddenly decreasing the speed of his automobile, to give a proper signal of such intention, and if you believe from the evidence in this case that the plaintiff so stopped or decreased his speed without giving such proper signal, then you must find that the plaintiff was negligent."
This Court held in the case of Alabama V.R. Co. v. Groome, 97 Miss. 201, 52 So. 703, that an instruction was not erroneous for failure to confine the negligence to that alleged, where other instructions limited plaintiff's right to recover to such negligence.
III. Appellant quotes the instruction of which he complains, then appears to suddenly realize that it fairly states the law, and turns it aloose. The instruction tells the jury that the plaintiff must prove his case, that is, he must prove defendant's negligence and its causal relationship to the injury, by a preponderance of the evidence.
Moreover, in plaintiff's instruction number nine the jury was told: "The court instructs you for the plaintiff that contributory negligence on the part of the plaintiff is an affirmative defense, and the burden is on the defendant if he is to prove contributory negligence."
Part two of appellant's third assignment of error refers to the instruction that the plaintiff must prove that the defendant was negligent in the manner charged in the declaration, appellant complaining that "the jury had to go to the declaration to see what negligence was necessary to sustain a verdict for the plaintiff." We will not amplify upon the general rule except to say again that the jury considers the instructions as a whole.
We now invite the attention of the Court to the following instructions given for the plaintiff:
Number two, "The court instructs you for the plaintiff that if you believe from a preponderance of the evidence that the defendant failed to keep a proper lookout to the front or was following the plaintiff at an imprudently close interval, and as a result thereof, collided with the rear of the plaintiff's automobile, damaging the automobile, then in that case the plaintiff would be entitled to recover for the actual cost of repair of his automobile, in addition to such sum, if any is shown by the evidence, as he was damaged by being deprived of the use of his automobile, and such sum, if any is shown by the evidence, as his automobile decreased in market value after being repaired."
Number three, "The court instructs you for the plaintiff that it is the duty of one operating an automobile truck to do so in a careful and prudent manner, and when following behind another vehicle he should proceed at such a speed and at such distance from the vehicle ahead as will permit him to avoid a collision in the event the automobile ahead may be required to come to a sudden stop, irrespective of whether or not the driver of the preceding vehicle gives any signal of his intention so to stop. He is bound to anticipate that the automobile or vehicle ahead might be required to stop suddenly, and it is his duty to look out and be prepared for a stop on the part of the automobile ahead and to keep at such a distance and to maintain such control of his automobile truck as to enable him to stop without hitting the vehicle ahead."
Number five, "You are instructed that it is not enough that a driver be able to stop within the range of his vision or that he use diligence to stop after discerning an object. He must, on peril of legal negligence, so drive that he can actually discover an object, perform the manual acts necessary to stop, and bring the car to a complete halt within such range, if necessary, to avoid collision with and injury to others on the highway."
With these instructions squarely before it, the jury was amply guided, without "going to the declaration" to learn the character of the negligence of which the defendant must be guilty in order for the plaintiff to recover.
IV. Here appellant labels defendant's instruction number seven as "vague". For a full understanding of the problem we quote the instruction: "The court instructs the jury for the defendant that a person driving upon the highway is required by law, before stopping or suddenly decreasing the speed of his automobile, to give a proper signal of such intention, and if you believe from the evidence in this case that the plaintiff so stopped or decreased his speed without giving such proper signal, then you must find that the plaintiff was negligent."
In assigning this instruction as error, appellant simply proves again that he has only casually read the other instructions, and has again lost sight of the over-all picture. To answer this allegation of error it is only necessary to read the above quoted instruction in conjunction with plaintiff's instruction number six which reads: "The court instructs you for the plaintiff that if you believe from a preponderance of the testimony that the plaintiff's automobile was equipped with a light or lights on the back of his automobile that lighted when the plaintiff applied the brakes of the automobile and that the plaintiff applied his brakes, causing the lights or light to shine with increased intensity just before the collision, then the plaintiff has complied with the laws of the State of Mississippi as to the requirement for signals required to be given before stopping."
Furthermore, in plaintiff's instruction number three the jury was told that the defendant in following the plaintiff was under a duty to "proceed at such a speed and at such distance from the vehicle ahead as will permit him to avoid a collision in the event the automobile ahead may be required to come to a sudden stop, irrespective of whether or not the driver of the preceding vehicle (plaintiff) gives any signal of his intention so to stop."
There could hardly be a more apt situation to apply the rule that instructions modify and complement each other. A close analogy is the case of Sternberg Dredging Co. v. Screws, 175 Miss. 383, 166 So. 754. This was an action arising out of a collision between an automobile and a truck on a bridge. A deficiency in an instruction relating to the precautions the truck driver should have taken in approaching the bridge was held to be cured by an instruction setting out the statutory provisions defining the duty of the operator of an automobile when approaching a bridge.
V. Appellant also feels aggrieved because the jury was instructed that "the plaintiff can not recover in this case any damages whatever for the loss of the use of his automobile."
Although in a proper case such damage might be allowable, such loss must be proved before it can be recovered. In the case at bar there was no amount testified to as the reasonable value of the loss of use of the automobile, and there were no facts in evidence from which the jury could set a price. The jury must be given some standards, basis or facts upon which to rely or to return a verdict. Plaintiff's allegation for $100 for the loss of use of his automobile is not proof. Appellant's argument that "The defendant nowhere contended that said sum (the alleged $100) was unreasonable or not allowable", presupposes that the plaintiff is not required to make out any case at all, but simply to "allege" and thereby compel the defendant to disprove, a theory wholly foreign to our conceptions of the law. A sufficient answer otherwise, as we believe, would be simply to say, "An allegation of a fact is, of itself, no proof thereof."
In Oppenheimer v. Telhiard, 123 Miss. 111, 85 So. 134, an action of replevin, this Court stated: "Both the instruction and the verdict based thereon fix the value of the furniture at $150 without any evidence, and without any effort on the part of the jury to assess each article of furniture separately. The cause will accordingly be . . . reversed for the proper valuation of the various articles of furniture upon proper writ of inquiry."
VI. Appellant's sixth assignment of error stems from the court having refused an instruction proffered by plaintiff, which would have told the jury that defendant should do what a reasonably prudent man would do when he has wet brakes or what a reasonably prudent man would do when he thinks they might be wet. Beside the obvious error therein contained, there is further ample justification for the court's refusal of this instruction for the simple reason that there was no evidence of the defendant's brakes being wet. The only evidence of wet brakes was the inference cast by counsel for plaintiff in his cross-examination of the defendant. And, it is not error to refuse an instruction which has no basis upon the evidence.
Furthermore, in plaintiff's instruction number five the jury was told that the defendant must, "on peril of legal negligence, so drive that he can actually discover an object (within the range of his vision), perform the manual acts necessary to stop, and bring the car to a complete halt within such range. . . ."
This instruction covers the one refused. This Court in T.J. Moss Tie Co. v. Bank of Decatur, 97 So. 417 (418) said: "We do not think the refusal of these three instructions was error. If it should be conceded that the instructions were correct as drawn, which we do not decide, the issues which it was proposed to submit to the jury were fully covered by the several instructions which were granted to the appellant."
VII. Appellant's seventh, and last, assignment of error, is based upon another of his instructions which the court refused. This instruction was to the effect that the failure to perform a duty imposed by statute is negligence, and further, that if the jury found that the defendant was following the plaintiff more closely than the hypothetical reasonably prudent man would, and if such caused the accident, it was actionable.
Again, we are compelled to invite the Court's attention not only to the well established rules and principles of law hereinabove referred to, but also to another of plaintiff's instructions which substantially covers the one refused. His instruction number three hereinbefore quoted in full, in its sum and substance states that defendant was under a duty to follow the plaintiff at such speed and distance as will permit him to avoid a collision, irrespective of whether or not plaintiff gave a signal that he was about to stop, and further that the defendant must anticipate that the plaintiff might stop suddenly.
Thus, in his instruction the plaintiff has specifically and meticulously itemized wherein defendant might have been negligent, at the same time obtaining instructions in his favor more favorable and advantageous than he was entitled to by law.
Again, to have allowed additional instructions covering these matters would constitute repetition and reiteration tending to over emphasize and give undue prominence to this phase of the law, and to have given plaintiff such instructions would have been error, and thus there was no error in disallowing them.
Appellant sued appellee for damages, as an alleged proximate result of the latter having, as charged, negligently rammed his truck into the rear of the former's car. The matter was submitted to the jury, which returned a verdict for the defendant-appellee, and the plaintiff-appellant appealed.
In midafternoon of a rainswept August day, appellant was driving his car on old Highway 82, west of Columbus, while, behind him, appellee was driving his heavy truck in the same direction. The automobile had a signal light thereon, in sight of the driver of the truck. The thunder was roaring, the lightning flashing, and rain was falling heavily. Appellant saw a jeep approaching ahead on the wet gravel road, and slowed down as a precaution in passing, — then again gathered momentum while the jeep went by. A servant in the car with him confirmed his own impression that the driver of the jeep, which stopped, signalled for help. Appellant then either stopped or slowed down to such a slow speed, as almost to stop. At this juncture, the truck crashed into the back of the car. The jeep sped away, not having signalled at all. The truck driver was following too closely, according to appellant: while the eccentric vacillation of appellant's automobile between slowing and accelerating speed and finally apparently stopping, caused the collision, the appellee contends, and that no proper signal was given by appellant, at any time. However, it is to be remembered that he had a working electric signal light on the rear of his car. The appellant argues that the brakes on appellee's truck would not take hold, which is denied. The action was for damage to the automobile, loss of its use, and depreciated market value thereof as a car which had been through a wreck and repair.
Appellant assigns as error the granting of five instructions to the defendant, and the refusal of two to him.
(Hn 1) The first instruction, of which complaint is here made, reads as follows: "The Court instructs the jury for the defendant that if you believe from the evidence that plaintiff and defendant were equally negligent, then it is your duty to find for the defendant."
This instruction was erroneously granted. The defendant would not be absolved from liability altogether, if both were negligent equally, but plaintiff's damages would be reduced by fifty per cent. Section 1454, Code 1942. The instruction should not have been given. Reynolds-West Lumber Company v. Kellum, 5 Cir., 19 F 2d 72; Gulf, M N R Company v. Arrington, Miss., 107 So. 378; Cumberland Telephone Telegraph Company v. Cosnahan et al., 105 Miss. 615, 62 So. 824.
(Hn 2) The next instruction, assigned as error, told the jury: "The Court instructs the jury for the defendant even if you may believe from a preponderance of the evidence that the defendant was guilty of negligence, if you also believe that plaintiff was negligent too, then it is your duty to find for the defendant or to diminish plaintiff's actual damages in such proportion as plaintiff's negligence, if any, may have contributed to the accident." It is at once manifest that the first part of the instruction is a repetition of part of the condemned one, supra. The instruction, furthermore, gives no guide to the jury to enable them to judge what is negligence in the case, or to appraise it. McDonough Motor Express, Inc., v. Spiers, 180 Miss. 78, 176 So. 723, 177 So. 655. This instruction was erroneous, also.
Appellee contends that we should look at the case as a completed trial, and even though the instructions be technically incorrect, we should refuse to reverse, because the error was not substantial, citing Meridian Sanatorium v. Scruggs, 121 Miss. 330, 83 So. 532; City of Jackson v. Wright, 151 Miss. 829, 119 So. 315; Nelms Blum Company v. Fink, 159 Miss. 372, 131 So. 817. We cannot agree that the error in granting these instructions was insubstantial, or cured by other instructions in the record, since they are fundamentally in violation of the comparative negligence statute, and transgress our decisions as to instructions anent negligence.
(Hn 3) The third instruction granted appellee, of which complaint is made, is as follows: "The Court instructs the jury for the defendant that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence not only that the defendant was negligent in the manner charged in the declaration, but that such negligence was the proximate cause of the accident, and unless you believe both propositions by a preponderance of the evidence, then it is your duty to find for the defendant." We have many times condemned instructions which referred the jury to the declaration, — which may be highly technical, may be complex, amended, and supplemented, — and jurors should not be referred to the declaration for the hypothesis upon which to rely, but it should be in the instruction itself. Lanham v. Wright, 164 Miss. 1, 142 So. 5. It was error to grant this instruction, but we would not reverse the case at bar for its granting, because, as appellee correctly points out, other instructions, not in conflict therewith, were granted, which incorporated in them the absent hypothesis omitted from the challenged instruction. So that, reading them together, the jury was sufficiently instructed de hors the declaration.
(Hn 4) Appellant's fourth assignment of error is the granting to appellee the following instruction: "The Court instructs the jury for the defendant that a person driving upon the highway is required by law, before stopping or suddenly decreasing the speed of his automobile, to give a proper signal of such intention, and if you believe from the evidence in this case that the plaintiff so stopped or decreased his speed without giving such proper signal, then you must find that the plaintiff was negligent." This instruction should not have been granted, because it was not supported by any evidence. It is to be remembered that the automobile had a signal lamp on its back end. Under Section 8193, Code 1942, it is provided that the "signals . . . shall be given . . . by a signal lamp." There is no controversy in the record as to the car being so equipped. It was also in good order. Appellee contends that this instruction was cured by other instructions in the case, but with this we cannot agree, since the others he cites are in conflict with the one under present consideration, or do not avoid its error.
(Hn 5) As to the instructions granted appellee, appellant complains lastly because the trial judge instructed the jury: "The Court instructs the jury for the defendant that the plaintiff can not recover in this case any damages whatever for the loss of the use of his automobile." Here, it is to be recalled that loss of use was one of the elements of damages set out in the declaration, which was therein fixed at $100 for such loss. However, while appellant made proof of the loss of use, he offered no testimony whatsoever as to the amount of damages he suffered thereby. There was no evidence, therefore, on which the jury could base an award, and hence the instruction was correctly given. (Hn 6) Appellant complains that he was refused an instruction based on an assumption that the brakes on appellee's truck were not efficient, when, as a matter of fact, there was no such evidence in the record. Hence, the trial judge committed no error in refusing the instruction.
(Hn 7) However, he should have granted appellant this instruction, which was refused: "The Court instructs you that the failure of any person to perform a duty imposed upon him by statute is negligence in itself. Therefore, should you find that the defendant, Lloyd Gordon, in his automobile truck immediately prior to and at the time of the collision referred to in the complaint, followed the vehicle in which the plaintiff, Saunders Wilburn, was riding more closely than was reasonable and prudent, having due regard to the speed of such vehicles and the traffic upon and the condition of the highway upon which said cars were traveling, and that such failure on his part was a proximate cause of the collision with the plaintiff's car, then his conduct in so doing constituted actionable negligence." As stated, we think appellant was entitled to this instruction. Section 8188 (a), Code 1942. Appellee contends that appellant was granted another instruction to the same effect as the refused one, and, accordingly, such refusal was not error. (Hn 8) The granted instruction was incorporated in another, covering a different and additional point also, and hence the refused instruction was not so completely a duplication as to justify its denial by the trial judge.
Appellee contends that we should not reverse this judgment in his favor because of Supreme Court Rule No. 11, and Howze v. State, Miss., 43 So.2d 191. Notwithstanding, we are constrained to do so, because the errors of the court below in erroneously granting some, and refusing another, instruction, resulted in a denial of a fair trial to appellant, since the jury were not properly instructed on the law of the case.
Reversed and remanded.