May 5, 1958.
1. Motor vehicles — collision — automobile making left turn into driveway and oncoming vehicle — question of oncoming motorist's negligence for jury.
In action by automobile passenger for personal injuries sustained when automobile in which he was riding was, while making a left hand turn off highway into a private driveway, struck by oncoming vehicle driven by defendant motorist at 80 miles per hour, evidence presented jury question as to whether oncoming motorist's negligence was active and continuing to the moment of collision and constituted a proximate cause of accident.
2. Motor vehicles — collision — instructions — harmless error — Rule 11, Supreme Court Rules applied.
Instruction respecting whether driver of automobile had right to assume that all other persons were obeying traffic laws, while error was harmless since evidence was such that no impartial jury could reach a different result. Rule 11, Supreme Court Rules.
3. Appeal — Rule 11, Supreme Court Rules — when applicable.
Under rule providing that no judgment should be reversed on ground of misdirection to jury or improper admission or exclusion of evidence unless it should appear from the whole record that judgment has resulted in a miscarriage of justice, error alone is not sufficient to justify reversal, and rule is properly applied when error is so slight that it can be safely said that it could not have misled jury or prejudiced complaining party even when evidence is in substantial conflict, and when error is substantial but is such that from the whole record it appears that no impartial jury, duly mindful of obligation of oaths, could reach a different result. Rule 11, Supreme Court Rules.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Washington County; ARTHUR JORDAN, J.
Kellner Kellner, Greenville, for appellant.
I. The Court erred in refusing appellant's request for a directed verdict. Howell v. I.C. RR. Co., 75 Miss. 242, 21 So. 746; L. N. RR. Co. v. Daniels, 135 Miss. 33, 99 So. 434; Bufkin v. L. N. RR. Co., 161 Miss. 594, 137 So. 517; Mississippi City Lines, Inc. v. Bullock, 194 Miss. 630, 13 So.2d 34; Stewart v. Kroger Groc. Co., 198 Miss. 371, 21 So.2d 912; Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Kullman Co. v. Samuels, 148 Miss. 871, 114 So. 807; Secs. 8192, 8197, Code 1942; 38 Am. Jur., Negligence, Secs. 67-72.
II. The Court erred in granting appellee Instruction No. 2, which is as follows: "The Court instructs the jury for the plaintiff that the law imposes a duty upon the driver of an automobile to keep his machine constantly under control; to continue alert for others using the highway; to take notice of the road, observe conditions along the way and to know what is in front of him for a reasonable distance; and, that the driver of an automobile has no right to assume that all other persons are obeying the traffic law. The Court further instructs you that if you believe from a preponderance of the evidence that at the time of the collision the defendant failed to measure up to these standards, you will find the defendant guilty of negligence. If you further believe from a preponderance of the evidence that this negligence, if any, of the defendant proximately contributed to or caused the collision and the plaintiff's injuries, then it is your duty to return a verdict for the plaintiff." Rawlings v. Inglebritzen, 211 Miss. 760, 52 So.2d 630; Harris v. McCuiston, 217 Miss. 601, 64 So.2d 692; Yazoo M.V. RR. Co. v. Hawkins, 159 Miss. 775, 132 So. 742; Vol. I, Alexander's Miss. Jury Instructions, Secs. 52-53, 56, 63.
III. The Court erred in granting appellee Instruction No. 5, which is as follows: "The Court instructs the jury for the plaintiff that the negligent act of a person, resulting in injury, is the proximate cause thereof, and creates liability therefor, when the act is of such character that, by usual course of events, some injury, not necessarily the particular injury or injuries received in the particular manner complained of, would result therefrom, provided the attendant circumstances are such that an ordinarily prudent man ought reasonably to have anticipated that some injury would probably result from the act done. In order that a person may be liable for damages resulting from his negligence, it is not necessary that his negligence should have been the sole cause of the injury. If a defendant is negligent, and this negligence combines with that of another, he is liable, although his negligence was not the sole negligence, or the sole proximate cause, and although his negligence, without such independent intervening cause would not have produced the injury. The Court further instructs the jury that if you believe from a preponderance of the evidence and under the other instructions given you by this Court that the defendant is guilty of negligence, and if you further believe from a preponderance of the evidence that this negligence of the defendant, if any, proximately contributed to the collision and the plaintiff's injuries, then it is your duty to return a verdict in this case for the plaintiff." Bufkin v. L. N. RR. Co., supra.
IV. The verdict is contrary to the overwhelming weight of the evidence.
J. Robertshaw, Greenville, for appellee.
I. The doctrines relating to an independent intervening cause have no relation to the issues before this Court, and may not be raised here for the first time.
A. The scope of the review in this Court should be limited to the theory upon which appellant relied in the Trial Court.
B. In considering whether the Trial Court should or should not have directed a verdict for the appellant, the question is whether the evidence conclusively shows the appellant not guilty of negligence.
C. Considering appellant's argument on the merits, the defense that Mann's negligence was an independent, intervening cause is not here applicable.
D. The authorities cited by appellant in support of his position are distinguishable from the facts in this case.
E. Appellant's argument on Mann's negligent turn furnishes no basis for a directed verdict.
Collation of authorities: Bufkin v. L. N. RR. Co., 161 Miss. 594, 137 So. 517; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; Kulliman Co. v. Samuels, 148 Miss. 871, 114 So. 807; L. N. RR. Co. v. Daniels, 135 Miss. 33, 99 So. 434; Mathews v. Thompson, 231 Miss. 258, 95 So.2d 438; Mississippi City Lines, Inc. v. Bullock, 194 Miss. 630, 13 So.2d 34; Seward v. First Natl. Bank in Meridian, 193 Miss. 656, 8 So.2d 236; Solomon v. Continental Baking Co., 172 Miss. 388, 160 So. 732; Stewart v. Kroger Groc., Etc. Co., 198 Miss. 371, 21 So.2d 912; 5-A Am. Jur., Automobiles Highway Traffic, Secs. 240, 723; 38 Am. Jur., Negligence, Secs. 68, 72.
II. Appellee's Instruction No. 2 was proper, and is supported by the evidence.
A. The instruction is supported by the evidence.
B. That portion of the instruction stating that the driver of an automobile has no right to assume that all other persons are obeying the traffic law is not improper. Harris v. McCuiston, 217 Miss. 601, 64 So.2d 692; McMinn v. Lilly, 215 Miss. 193, 60 So.2d 603; Rawlings v. Inglebritten, 211 Miss. 760, 52 So.2d 630; Terry v. Smylie, 161 Miss. 31, 133 So. 662; Ulmer v. Pistole, 115 Miss. 485, 76 So. 552; 38 Am. Jur., Negligence, Secs. 332, et seq.; 60 C.J.S., Motor Vehicles, Sec. 317; Vol. I, Alexander's Miss. Jury Instructions, Sec. 63; McElroy's Miss. Evidence (1955), Sec. 154.
III. Appellant may not complain here of the fact that the covenant not to sue revealed that the appellant was covered by liability insurance. Blackwell v. State (Miss.), 44 So.2d 409; Snowden v. Skipper, 230 Miss. 684, 93 So.2d 834; Rule 6, Supreme Court Rules.
IV. Appellee's Instruction No. 5 was entirely proper. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Cumberland T. T. Co. v. Woodham, 99 Miss. 318, 54 So. 890; Gulf Rfg. Co. v. Brown, 196 Miss. 131, 16 So.2d 765; Mathews v. Thompson, supra; Neely v. City of Charleston, 204 Miss. 360, 37 So.2d 495; Solomon v. Continental Baking Co., supra.
V. The verdict is not contrary to the overwhelming weight of the evidence. Secs. 1455, 1742, Code 1942.
Appellee, plaintiff below, bronght suit against appellant, John A. Brown, Jr., defendant below, and the estate of C.L. Mann, for personal injuries sustained by appellee in an automobile collision between an automobile driven by Mann, in which appellee was a passenger, and one driven by Brown. Appellee settled with the estate of Mann for $20,000, and executed a covenant not to sue the Mann estate. The case proceeded to trial against appellant Brown, resulting in a judgment for $10,000, from which Brown appeals.
The following facts are without dispute, or were so clearly established by the evidence that there is no substantial evidence to the contrary: The collision resulting in appellee's injuries occurred at night on Highway 82 about five miles east of Greenville, Mississippi, at the east driveway to Mink's Supper Club. Highway 82 is paved, straight, level, and has four traffic lanes, two for eastbound traffic, and two for westbound traffic. Mink's Supper Club is situated on the north side of Highway 82 about five miles east of Greenville. There are two gravel driveways, about 180 feet apart, leading north from Highway 82 to Mink's Supper Club. Mann, driving a 1955 model Ford automobile, was going east on the northermost of the two eastbound lanes of said highway with the intention of going to Mink's Supper Club. He slowed down from about 45 miles per hour to a slow speed and turned to his left across the north half of the highway in order to enter the east driveway. When the Mann automobile was across the northermost of the westbound traffic lanes it was struck about the center by appellant Brown's 1954 Mercury. Appellant was traveling from Leland to Greenville using the northermost lane of Highway 82, which was the righthand lane of the two westbound traffic lanes. Appellant's automobile never changed speed or direction before the collision. Appellant's vehicle struck Mann's with such force and speed that it literally went through the Mann automobile so that Mann's Ford was cut in two parts, leaving them connected only by the frame and metal floor. Appellant's Mercury made tire marks on the steel floor of the Ford as it went through. Appellant's Mercury was hurled into the air and either went through the air without touching the ground, or bounced, a distance of 180 feet, landing upside down and on fire. Mann, appellee, and appellant all had consumed some liquor prior to the accident. Appellant admitted that he and his girl friend had consumed nearly a pint between about eight o'clock and the time of the accident, about eleven-thirty o'clock. Appellee was gravely, permanently, and painfully injured, but we need not detail his injuries since no question is presented as to the amount of damages.
In behalf of appellee, the evidence as to the speed of appellant's Mercury was from 80 to 100 miles an hour. A highway patrolman testified without objection that he had never in all of his experience seen an automobile struck with as much force. He was testifying from his observation of the physical facts. Appellant testified that he was not looking at his speedometer, but to the best of his knowledge he was not exceeding the speed limit of sixty miles per hour, but he admitted giving a previous false statement, and that he had given a previous statement in which he stated that he did not know how fast he was going but that he usually stayed within the speed limits. The proof was overwhelming that the left blinker light was burning on the Mann automobile for some distance before that vehicle made its left turn, but appellant disputed this. There is dispute as to how far appellant's automobile was from the east driveway when Mann started to turn left. Appellee testified that it was so far east at that time that it did not seem dangeroue, while appellant testified that the Mann automobile turned right in front of him. Appellant admitted that he had given a previous statement in which he stated that he did not know how far the Mann vehicle was in front of the Mercury when Mann made his left turn. (Hn 1) Appellant contends that he was entitled to a directed verdict. He argues that even if appellant was guilty of negligence, that negligence was insulated by the negligent act of Mann in turning left into the path of appellant's vehicle; that the negligence of Mann was an independent, efficient, intervening cause of the collision. Appellant cites and relies on various cases from this jurisdiction. This contention is untenable because it cannot be said that Mann's negligence superseded appellant's prior wrong as the proximate cause of the injuries to appellee, by breaking the sequence between appellant's negligence and the injury. Appellant's negligence and that of Mann were not successive and unrelated in their operation; they were concurring proximate causes. Appellant's negligence was active and continuing to the moment of the collision. It was not remote in the chain of causation.
(Hn 2) Appellant next complains of certain instructions granted appellee. This is the most serious question presented by the appeal. The main contention is that the court erred in granting appellee an instruction with reference to whether the driver of an automobile has the right to assume that all other persons are obeying the traffic laws. The instruction granted appellee was error and it was also in conflict with one granted appellant. Both parties got stronger instructions on this question than the law and evidence justified. Appellant was granted a number of instructions thoroughly presenting his theories.
We have given careful consideration to the error committed in granting appellee's instruction No. 2 referred to above in view of Rule 11, Revised Rules of the Supreme Court, as follows:
"No reversal for Harmless Error. No judgment shall be reversed on the ground of misdirection to the jury, or the improper admission or exclusion of evidence, or for error as to the matter of pleading or procedure, unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice."
Taking into consideration the whole record, it does not affirmatively appear that the judgment of the lower court resulted in a miscarriage of justice. It is our considered opinion that any jury honestly searching for the truth would reach the conclusion that appellant was guilty of negligence. The undisputed physical facts are sufficient to show that appellant was operating his automobile at such a dangerous rate of speed that it was not possible for him to have had it under reasonable control. The error in the instruction was harmless. Jones v. State, 104 Miss. 871, 61 So. 979; Cecil Lumber Company v. McLeod, 122 Miss. 767, 85 So. 78; Producers Gin Assn. v. Beck, 215 Miss. 263, 60 So.2d 642; Miss. State Highway Department v. Meador, 184 Miss. 381, 185 So. 816; Comings v. State, 163 Miss. 442, 142 So. 19; Hatten v. State, 150 Miss. 441, 116 So. 813.
(Hn 3) This Court has applied Rule 11 in the cases cited above and a number of others. Error alone is not sufficient to justify reversal; there must be prejudice. The situations where it is proper to apply Rule 11 fall into two general categories: (1) Where the error is so slight that it can safely be said that it could not have misled the jury or prejudiced the complaining party, even when the evidence is in substantial conflict, and (2) where the error is substantial but the evidence is such that from the whole record it appears that no impartial jury, duly mindful of the obligations of their oaths, could reach a different result. This case falls in the second category.
We recognize that this Court should apply Rule 11 with the utmost caution. If we could find from the whole record any reasonable basis for a jury to exonerate appellant of negligence proximately contributing to appellee's injuries, we would reverse the case.
From what has been said, it necessarily follows that there is no merit in the contention that the verdict is against the overwhelming weight of the evidence.
The motion of appellee to dismiss the appeal is overruled.
Motion to dismiss appeal overruled; affirmed on merits.
Roberds P.J,, and Lee, Arrington and Ethridge, JJ., concur.