Supreme Court of Mississippi, Division BOct 28, 1935
174 Miss. 75 (Miss. 1935)
174 Miss. 75163 So. 823

No. 31811.

October 28, 1935.


Person is required to so guide his conduct as not unreasonably to injure another, and an "actionable wrong" is committed when a responsible person has neglected to use a reasonable degree of care for protection of another person from such injury as under existing circumstances should reasonably have been foreseen as a proximate consequence of that negligence.


In action for death of motorist as result of nighttime collision with projecting body of truck which motorist was attempting to pass on highway, instruction that if reasonable and prudent man would not operate truck having width of truck in question on public highway at night without light on left forward part of truck body, that defendants were operating truck of such width without displaying such lights, and that such conduct contributed directly and proximately to collision and resulting death, jury should find for plaintiff, held proper.


In action for death of motorist as result of nighttime collision with projecting body of truck which motorist was attempting to pass on highway, instructions that no statute required defendants to maintain lights on side of truck body nor prohibited truck having width of one involved held reversible error, notwithstanding court had correctly charged duty of defendants to maintain lights under common law.


Jurors are judges of facts, and trial judge, throughout a trial, is sole judge of the law in so far as he gives law in written instructions, and consequently judge, in order that jury may not obtain idea that instructions were intended to be advisory only, should not state source from which he obtains law which he gives in charge.

APPEAL from the circuit court of Hinds county; HON. JULIAN P. ALEXANDER, Judge.

Lotterhos Travis, of Jackson, Hugh B. Gillespie, of Raymond, and A.B. Butts, of University, for appellant.

It is proper to refuse, and error to give, conflicting and contradictory instructions, since a charge containing two distinct propositions conflicting with each other tends so to confuse the jury as to prevent their rendition of an intelligent verdict.

64 C.J., sec. 600, page 671; Jefferson Standard Life Ins. Co. v. Jefcoats, 143 So. 842; Wilbe Lbr. Co. v. Calhoun, 140 So. 680; Columbus G. Ry. Co. v. Phillips, 133 So. 123, 160 Miss. 390; Hines v. Lockhart, 105 So. 449; Yazoo M.V.R. Co. v. Cornelius, 95 So. 90, 131 Miss. 37; Solomon v. City Compress Co., 10 So. 446, 12 So. 339, 69 Miss. 319; Kansas City, etc., R. Co. v. Lilly, 8 So. 644; Herndon v. Henderson, 41 Miss. 584.

The two instructions given the appellees wherein the court told the jury that the defendants had violated no statute of the state of Mississippi in operating a truck of the width in question, and without lights, are argumentative when considered with the instruction given the plaintiff with respect to the same matters defining the common law duties of the defendants.

64 C.J., page 654, sec. 594.

It is erroneous for the court to imply that an unquestionable right is doubtful.

64 C.J. 255 and 586; Mott v. Bank, 78 Wn. 294; Ulmer v. Pistole, 115 Miss. 490; 14 R.C.L., page 773, sec. 42.

When the court gave the plaintiff the instruction laying down the common law principle that it was for the jury to say whether or not the defendants were guilty of negligence in operating a truck over the highways at night with a body eighty-eight inches in width and projecting beyond the cab sixteen inches, and without lights to indicate the danger of the excessively wide body, the court should not then have gone further as it did in the case of the two instructions granted the defendants, and have told the jury, in effect, that the Legislature of the state had not seen fit to condemn by statute the operation of a truck with a body of the width of eighty-eight inches, or one without lights on a body of such width.

The mere fact that an instruction is argumentative in form or character does not justify a reversal of a cause; yet, where the argumentative instructions are of a character calculated to mislead the jury, it is within itself sufficient grounds for the reversal of the judgment.

64 C.J., sec. 594, page 661; 14 R.C.L., sec. 42, page 775 and sec. 48, page 780.

As instructions should not draw the jury's attention to particular facts, it is error to give, and proper to refuse, instructions that unduly emphasize issues, theories, or defenses, whether by repetition or by singling them out and making them unduly prominent, although the instructions may be correct as legal propositions.

64 C.J., page 682, sec. 601; Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617; Hooks v. Mills, 57 So. 545, 101 Miss. 91; Mohead v. Gilmer Grocery Co., 121 So. 143, 153 Miss. 467.

It was error for the trial court to give the defendants the instruction based on the forty miles per hour speed statute governing the operation of automobiles outside of municipalities.

The trial court erred in giving appellees an instruction permitting the jury to find the sole cause of the collision was the action of the deceased in crossing the center line of the highway.

Wells, Wells Lipscomb, of Jackson, and M. Ney Williams, of Raymond, for appellees.

We cannot see how appellant can possibly contend that the two instructions are argumentative. They are merely plain simple statements that no statute prohibited an eighty-eight inch body on a truck, and no statute required defendants to keep any lights on the body, leaving the jury absolutely free to determine defendants' negligence vel non under the principles of the common law.

Nor do we see how appellant can contend that the instructions are misleading. On the contrary, we think the jury would have been very much confused if these instructions had not been given to clarify the legal principles involved in the case.

Sections 5569, 5574 and 5575, Code of 1930.

The two instructions granted to appellees and complained of by appellant, and the two instructions granted to the appellant, instructions numbers three and four, were to be read and construed together as a whole. If, when so read and construed, they fairly stated the law applicable to the case, then the giving of the said two instructions to appellees, even if, taken by themselves, they might be considered erroneous, could not cause the reversal of this case. That rule is so well settled that it hardly seems necessary to cite authorities in support thereof.

64 C.J. 960; Y. M.V.R. Co. v. Mullen, 131 So. 101, 158 Miss. 774; Waddle v. Sutherland, 126 So. 201, 156 Miss. 540; Carlisle v. City of Laurel, 124 So. 786, 156 Miss. 410; Landrum v. Ellington, 120 So. 444, 152 Miss. 569; Friedman v. Allen, 118 So. 828, 152 Miss. 377; Brister v. Dunaway, 115 So. 36, 149 Miss. 5; Alabama V.R. Co. v. Fountain, 111 So. 153, 145 Miss. 515, 47 S.Ct. 769, 274 U.S. 759, 71 L.Ed. 1338; Hemming v. Rawlings, 110 So. 118, 144 Miss. 643; Gibson v. A.T. Wineman Sons, 106 So. 826, 141 Miss. 573; Cumberland Telephone Telegraph Co. v. Jackson, 48 So. 614, 95 Miss. 79; Hitt v. Terry, 46 So. 829, 92 Miss. 671.

Appellant complains that "these instructions were fatally defective in that they gave unnecessary prominence to an outside or collateral issue . . ." We respectfully submit that the width of the truck body and the absence of lights thereon is the only issue which the court submitted to the jury and the only issue which they could have submitted to the jury, even if it could correctly submit that issue.

Shortly after midnight on June 6, 1934, appellant's decedent was traveling northward in a coupe automobile on a public highway in Hinds county, and collided with the widely projecting side of the homemade body of a commercial truck owned by one of appellees and being driven in the opposite direction by the other of appellees, an employee of the owner, as a result of which collision the coupe was wrecked and appellant's decedent was so severely injured that he died within a few hours.

Suit was instituted, and on the trial of the case the following instruction was granted at the request of the plaintiff, appellant here: "The court instructs the jury for the plaintiff that if you believe from a preponderance of the testimony that a reasonable and prudent man operating a truck on the public highway at night would not operate a truck of a width of eighty-eight inches or seven feet and four inches, without providing a light of some kind on the left forward part of the truck body for the purpose of warning approaching cars of the width of the truck, and if you further believe from a preponderance of the testimony that at the time of the collision involved in this case the defendants were operating a truck with a body of seven feet four inches in width, without displaying such lights, and if you further believe that such conduct of the defendants contributed directly and proximately to the collision and resulting death, then such conduct would constitute negligence on the part of the defendants and it will be your sworn duty to bring in a verdict for the plaintiff."

At the request of the defendants, appellees here, the court granted the following two instructions:

"The court instructs the jury for the defendants that there is no statute in Mississippi requiring defendants to put or keep any lights, or any sign, of any kind or character on the front or sides of the body of the truck involved in this accident."

"The court instructs the jury for the defendants that the width of the truck in question at its widest part, to-wit, eighty-eight inches, was not in violation of any statute of the state of Mississippi."

Long before there were any statutes in this state, it was the established law of the land, applicable to every member of the civil community, that each shall so use his own or otherwise so guide his conduct as not unreasonably to injure another; and that an actionable wrong has been committed when a responsible person has neglected to use a reasonable degree of care and diligence for the protection of another person from such injury as under the existing circumstances should reasonably have been foreseen as a natural and proximate consequence of that negligence. It requires no statute to give force and validity to the principles of the law of negligence — no more than as to any other portion of the great field of the common law. The first above-quoted instruction was a substantially correct instruction, bottomed upon the settled principles in respect to actionable negligence to which we have adverted, and no statute was, or is, necessary to give full force and validity to that instruction. And whatever may have been the purpose in the request for the two quoted instructions to the effect that no statute had been enacted prescribing the law as given in the first quoted instruction, we must hold it to be reversible error to grant them, as was done, since we cannot say with dependable confidence that the jury was not misled thereby into supposing that since no statute had been enacted validating the instruction, the law as therein announced was not fully obligatory upon them. We may recall, as an illustration in point, the case when a prosecution for assault and battery, as a misdemeanor, was dismissed by the justice of the peace because the particular offense was not covered in the Code chapter on crimes.

Under our constitutional system in this state, jurors are the judges of the facts, and the trial judge, throughout the entire trial, is the sole judge of the law insofar as the judge gives the law in written instructions. In so far as the trial judge pronounces the law to the jury by written instructions, the jury must follow the law as thus given, or else violate their oaths. The result is that the judge is not required to state, and ought not to state, the source from which he obtains the law which he gives in charge. So far as the jury is concerned, the judge needs no authority other than himself as to the law; and when he gives the law he must give it in such manner that the instructions shall not be left open to doubt as to whether they have in fact the actual force and sanction of law, and, except as to cautionary instructions, no such terms shall be used or counter instructions allowed as may induce in the minds of the jurors, or some of them, the thought that the instructions are intended to be advisory only. More than seventy-five per cent of the instructions given in jury trials are based solely upon the common law. What would be the state of the records of jury trials if it were allowed that for every instruction based upon the common law the other side could get counter instructions that no statutes had been enacted covering the instructions granted at the request of the opposing party, and what dependable assurance would we feel here upon review that the jury or some members thereof were not affected thereby?

Since the judgment must be reversed for the error mentioned, we do not pursue the other assignments, particularly in view of the fact that, as the record appears to us, some of the important details in respect to the physical situation at the point of the injury, and perhaps in other respects, were not as fully developed as probably may be on a new trial.

Reversed and remanded.