Opinion
No. 40565.
November 11, 1957.
1. Motor vehicles — collision — negligence — question whether pickup truck ran broadside into side of pulpwood truck or was struck by pulpwood truck was for jury.
In action by occupant of pulpwood truck against driver of pickup truck for personal injuries sustained when defendant drove pickup truck out of driveway onto highway, question whether pickup truck ran broadside into side of pulpwood truck or was struck by pulpwood truck was for jury. Sec. 8181, Code 1942.
2. Negligence — driving with portion of vehicle on left side of highway contrary to statute at time of collision with vehicle entering highway from driveway on the left — as constituting contributory negligence.
Fact that driver of pulpwood truck was violating law in having a portion of truck on left side of road contrary to statute when collision occurred with pickup truck which was driving out of driveway would only be contributory negligence which would cause damages to be reduced and mere violation of such law in operation of pulpwood truck would not preclude occupant of pulpwood truck from recovering from driver of pickup truck. Sec. 8181, Code 1942.
3. Trial — collision — contributory negligence — fact that defendant did not plead contributory negligence nor request an instruction thereon would not preclude jury from applying law of comparative negligence.
Fact that defendant in automobile collision case did not plead contributory negligence and did not request any instruction thereon would not necessarily preclude jury from applying law on comparative negligence.
4. Instructions — damages — personal injuries — elements recoverable in personal injury action.
Instruction as to elements of damages recoverable in personal injury action, considered and approved.
5. Instructions — burden on plaintiff to prove material allegations of declaration — improper — curative — instructions granted defendant cured error, if any, in instructions granted plaintiff.
Instruction to effect that burden is on plaintiff to prove material allegations of declaration by a preponderance of the testimony and if he fails in this, it is duty of jury to find for defendant was improper, and such instruction together with other instructions granted defendant cured the error, if any, in the instructions granted plaintiff.
6. Instructions — referring jury to pleadings without setting forth some applicable principle of law — improper.
It is not proper for an instruction to refer the jury to the pleadings without setting forth some applicable principle of law; the law of the case should be set out in the instructions and the jury should not be invited to resort to the pleadings to piece out the instructions and determine what the law is, but the applicable law and facts of the case should be simply stated without referring the jury to the declaration to decipher facts or law from it.
Headnotes as approved by Hall, J.
APPEAL from the Circuit Court of Covington County; HOMER CURRIE, Judge.
M.M. Roberts, Hattiesburg; E.L. Dent and W.W. Dent, Collins, for appellant.
I. The appellant is entitled to judgment on the record. Continental Southern Lines v. Klaas, 217 Miss. 795, 65 So.2d 575; E.I. Dupont de Nemours Co. v. Ladner, 221 Miss. 378, 73 So.2d 249; Flynn v. Kurn, 183 Miss. 413, 184 So. 160; Gelfand v. Strohecker, Inc., 150 F. Supp. 655; Jones v. Dixie Greyhound Lines, 211 Miss. 34, 50 So. 902; Lorace v. Smith (La.), 138 So. 871; New Orleans N.E.R. Co. v. Burge, 191 Miss. 303, 2 So.2d 825; Permenter v. Milner Chevrolet Co., 229 Miss. 385, 91 So.2d 243; Reid v. McDevitt, 163 Miss. 226, 140 So. 722; Rodriguez v. State Farm Mutual Insurance Co. (La.), 88 So.2d 432; Vann v. Tankersly, 164 Miss. 748, 145 So. 642; Waguespack v. Savarese (La.), 13 So.2d 726; Y. M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50; 60 C.J.S., Sec. 281 p. 656; 65 C.J.S., Sec. 158 p. 798.
II. If we look only at the instructions granted to appellee and the opinion of the Court is guided solely thereby, the cause must be reversed and remanded for another trial. Graves v. Johnson, 179 Miss. 465, 176 So. 256; Hamilton v. McCry, 229 Miss. 481, 91 So.2d 564; Harris v. McCuiston, 217 Miss. 601, 64 So.2d 692; Illinois Central R. Co. v. Gibson, 219 Miss. 815, 70 So.2d 52; J.M. Griffin Sons v. Newton Butane Gas Oil Co., 210 Miss. 797, 50 So.2d 370; Jones v. Dixie Greyhound Lines, supra; McMinn v. Lilly, 215 Miss. 193, 60 So.2d 603; Mutual Benefit Health Accident Assn. v. Johnson (Miss.), 186 So. 297; New Orleans N.E.R. Co. v. Miles, 197 Miss. 846, 20 So.2d 657; Rawlings v. Royals, 214 Miss. 335, 58 So.2d 820; Robinson v. Kansas City Public Service Co. (Mo.), 137 S.W.2d 548; Scott v. Fowler, 227 Miss. 643, 86 So.2d 477; Secs. 1454, 8176, 8181, 8220, Code 1942; 65 C.J.S., Sec. 281 p. 1225.
J. Martin Mooney, Collins, for appellee.
I. This was simply another case where the jury, under proper instructions, was warranted in finding for the plaintiff, and it so did. Harper v. Wilson, 163, Miss. 199, 140 So. 693; New Orleans N.E.R. Co. v. Lewis, 214 Miss. 163, 58 So.2d 486; Permenter v. Milner Chevrolet Co., 229 Miss. 385, 91 So.2d 243; Standard Oil Co. v. Crane, 199 Miss. 69, 23 So.2d 297; Sec. 8219, Code 1942.
The appellee brought this suit in the circuit court for the recovery of damages for personal injuries sustained by him as a result of a collision between a pickup truck belonging to the appellant and a pulpwood truck belonging to Charles Keles Knight about 2 1/2 or 3 miles from Collins, Mississippi, on a public highway, commonly known as the Old Nicholson Road. The pulpwood truck at the time of the collision was occupied by R.B. Brady, the appellee herein, Jake Richards and Leo Brooks, all of whom were in the employment of Mr. Knight. The collision occurred at about or shortly before 7:00 o'clock in the morning. The Old Nicholson Road runs approximately north and south and at the point of collision is a smooth, straight and level gravel road. The pulpwood truck was traveling north thereon, the occupants thereof being en route to their work. The appellant lives on the west side of this road at about 300 yards therefrom and there is a straight narrow driveway approximately 10 feet in width which leads from his home in a southeasterly direction to the highway. Where this narrow road enters the highway the surrounding terrain on the south side of the narrow road was thickly covered with bushes to such extent that all the witnesses agree that a person traveling the narrow road could not see or be seen by persons traveling north on the highway.
The pulpwood truck was traveling, according to all the occupants thereof, about the center of the highway, the traveled portion of which was approximately 20 feet in width.
According to the testimony of the occupants of the pulpwood truck, it was traveling at a rate of about 30 to 35 miles an hour. It was a low-speed heavy duty truck and the body thereon was built for transporting pulpwood from the woods to the railroad track. The appellant was en route to Collins to his work and drove down the narrow roadway and according to his testimony he stopped and pulled out into the roadway and the pulpwood truck ran into the front of his pickup truck. According to the occupants of the pulpwood truck the pickup truck ran broadside into the side of the pulpwood truck. And all the witnesses who examined the vehicles testified that all the damage to the pickup truck was to the front end thereof and all the damage to the pulpwood truck was on the left side thereof, which was considerable, the frame being bent and the dual wheels being knocked loose.
All the witnesses for appellant were neighbors of his. None of them saw the actual collision but they arrived on the scene after it had happened and they testified that from the tracks showing in the highway the pulpwood truck was within 1 1/2 or 2 feet from the edge of the highway, but one of appellant's witnesses said there were no fresh tracks which appeared to have been made by the plupwood truck.
(Hn 1) The main argument of appellant, to which he devotes most of his brief, is that he is entitled to a judgment on the face of the record. We do not agree with this position. We are of the opinion that in view of the conflicts in the evidence this was a typical case for solution by a jury. According to the occupants of the pulpwood truck they did not see and could not see the appellant coming out of the side-road until he was in close proximity to the pulpwood truck. (Hn 2) In this connection appellant argues that the driver of the pulpwood truck was violating the law in having a portion thereof on the left side of the road, contrary to Section 8181, Code of 1942. But under our comparative negligence statute we are of the opinion that this would be only contributory negligence which would cause the damages to be reduced and a mere violation of the law in the operation of a motor vehicle would not entitle the opposite party to a peremptory instruction. This was held in the case of Terry v. Smylie, 161 Miss. 31, 133 So. 662. (Hn 3) The appellant did not plead contributory negligence and did not request any instruction thereon, which fact would not necessarily preclude the jury from applying the law on comparative negligence.
(Hn 4) The appellant next complains at the granting of some of the instructions for the appellee. The longest one of which complaint is made is found on page 221 of the record. This instruction is an exact copy of the one appearing as Form 1733 in Alexander on Mississippi Jury Instructions, which was fully considered by us and approved in the case of Planters Wholesale Grocery v. Kincade, 210 Miss. 712, 50 So.2d 578.
(Hn 5) Complaint is also made against some of the appellee's other instructions. We have carefully examined these and we are of the opinion that the error, if any, in them was cured by 10 other instructions which were granted to the appellant. One of these was, "The Court instructs the jury for the defendant that the burden is on the plaintiff to prove the material allegations of his declaration by a preponderance of the testimony and if he has failed in this, then it is your sworn duty to find for the defendant."
(Hn 6) This instruction has been condemned by this Court so many times that it is surprising to us that defense attorneys will continue to request it and that some of our trial judges will continue to grant it. The members of the jury are not skilled in the law and are not capable of determining what are the material allegations of a declaration. Even lawyers disagree as to which allegations are material and which are not. In the case of Southland Broadcasting Co. v. Tracey, 210 Miss. 836, 50 So.2d 572, we condemned an instruction in almost the exact language of this one and held that it is not proper for an instruction to refer the jury to the pleadings without setting forth some applicable principle of law, and we said that the law of the case should be set out in the instructions and the jury should not be invited to resort to pleadings to piece out the instructions and determine what the law is, but that the applicable law and facts of the case should be simply stated without referring the jury to the declaration to decipher facts or law from it. And we cited in that case other decisions in which the instruction in question has been disapproved. We have carefully examined all of the instructions in the case and we are of the opinion that with the exception of the one last mentioned, the jury was fully charged as to the applicable law.
The judgment of the lower court is therefore affirmed.
Affirmed.
Roberds, P.J., and Kyle, Arrington and Gillespie, JJ., concur.