87 So. 2d 694 | Miss. | 1956
This suit was brought by the appellee against the appellants and "Willard Hofer and Andrew Love for the recovery of damages growing out of an automobile accident which occurred on U. S. Highway 49 E about one-half mile north of the city corporate limits of the Town of Cruger, and resulted in a judgment in favor of the appellee against Canale and Miss McAdams, from which they appeal without supersedeas. No process was ever served on Andrew Love and the suit was dismissed as to him. Hofer was a passenger in the automobile owned by Canale and driven by his agent Miss McAdams, but he was asleep on the back seat of the car at the time of the collision and the trial court granted a directed verdict in favor of Hofer and submitted the case to the
The appellee was employed by John Deere Plow Company and in the course of his employment had been demonstrating farming equipment that afternoon and was travelling north on the same highway en route to his home in Memphis. There is ho substantial dispute that he was travelling on the east side of the highway. The only material dispute is whether the lights on his Chevrolet car were burning on high beam or on dim. The Canale Buick was travelling south on the west side of the highway and Miss McAdams testified that Jones’ lights were burning bright and that he would not dim them. She saw this condition about 600 feet before meeting the Chevrolet and she claimed that the lights of Jones’ car blinded her and caused her to run into the rear end of a south-bound mule drawn wagon loaded with approximately one bale of seed cotton. The wagon was demolished. It carried no lights or reflectors. Upon strildng the wagon the Buick car veered into the east half of the highway and there was a headon collision between the Buick and the Chevrolet. Mr. Jones testified that he did not have his lights on high beam, but that they were dim from the time he left Cruger until the accident occurred.
Complaint is next made at the granting of the following instruction: ‘ ‘ The court instructs the jury for the plaintiff, Jones, that, even if you should find, from the evidence that the operator of the cotton wagon in question was guilty of negligence, if any, in proximately contributing to the collision of the two automobiles, it will be your duty to find for the plaintiff, if you further find from the evidence that the operator of the Buick automobile was guilty of any negligence, if any, proximately contributing to the said collision, if any, and which proximately contributed to the damages and injuries of the plaintiff, if any.” The complaint is that this instruction authorized a recovery if the jury found from the evidence that the operator of the Buick was guilty of any negligence approximately contributing to the collision, but it will be noted that the instruction first discusses the negligence of the operator of the cotton wagon which might have contributed to the collision. And the instruction goes on to say that the plaintiff would still be entitled to recover if the jury found from the evidence that the operator of the Buick automobile was guilty of any negligence proximately contributing to the collision. It is not such an instruction as has been repeatedly condemned by this Court such as for instance in the case of Rawlings v. Royals, 214 Miss. 335, 58 So. 2d 820. In that case we cited numerous authorities where the instruction has been condemned and we then said: “A review of the foregoing authorities shows that in those cases where the other instruction did not correctly inform the jury as to the acts or omissions constituting negligence we have held the error to be prejudicial and have entered orders of reversal; on the other hand, in some of the
We have examined all of the instructions granted in the case at bar and we find that they did correctly instruct the jury as to the applicable law on the acts of negligence proved in the case with the exception that we think that in probably two of the instructions for appellants, they got more than they were entitled to. Again we say that' the instruction here under discussion was merely telling the jury that the negligence of the operator of the cotton wagon would not relieve the' defendants of their negligence which proximately contributed to the accident and we do not think that the instruction constituted any reversible error.
Complaint is next made against the following instruction for the plaintiff: ‘ ‘ The court instructs the jury for the plaintiff that the defendant McAdams was under the duty not merely to drive the Buick automobile so as to be able to stop within the range of her vision, but she was also under the duty to drive the Buick automobile in such manner that she could actually discover an object, perform the manual acts necessary to stop, and bring the automobile to a complete halt, if necessary, to avoid collision with others on or near the highways, and if you believe from a preponderance of the evidence in this case that Miss McAdams was not driving the Buick automobile so as to be able to avoid such a collision, then, in that event, Miss McAdams was negligent, and if you further believe from a preponderance of the evidence that such negligence, if any, proximately contributed to the happening of the accident, giving rise to the plaintiff’s damages, it is your sworn duty to find for the plaintiff. ” It is argued that this instruction goes far beyond the “range of light” theory and has no ap
Complaint is next made at the refusal by the court to grant the following instruction to the defendants : ‘ ‘ The court instructs the jury for the defendants that if you believe that the defendant, Miss McAdams, was blinded by the lights of the plaintiff Jones and if
Complaint is also made at the refusal of the following instruction: ‘ ‘ The court instructs the jury for the defendants that if you believe from the evidence that the defendant Miss McAdams was operating the Buick as a reasonably prudent person would, and did not attempt to pass the unlighted cotton wagon, but was blinded by the oncoming lights of the plaintiff Jones, and that under the circumstances then and there existing Miss McAdams was operating the Buick automobile as a reasonably prudent person would, but nevertheless ran into the back of the unlighted wagon and as a result thereof lost control of the Buick, then Miss McAdams would not be guilty of negligence,’and it would then become your duty to find for the defendants Miss Helen McAdams and Drew Canale. ’ ’ This instruction virtually amounts to a peremptory in favor of the defendants and was not justified by the evidence in the case.
The appellants lastly complain that the verdict of $35,000 is so large as to evince passion and prejudice on the part of the jury. The appellee was 32 years of age on the time of the accident and had a life expectancy of 36.01 years. In the accident he sustained a fracture of 4 ribs, one of which punctured the lung and partly collapsed it. His pelvis bone was also fractured and the break extended down into the'hip joint. His left knee was badly injured and he sustained a fracture of one of
Affirmed.