Clarke v. Hughes

99 So. 6 | Miss. | 1924

Ethridge, J.,

delivered the opinion of the court.

' The appellant was plaintiff below, and sued for damages resulting from a personal injury, and recovered a judgment of two hundred seventy-five dollars, and appeals on the ground that the judgment is grossly inadequate, and on the ground that the court committed error in instructing the jury that the jury might consider the defendant’s contributory negiigence and reduce the damages in accordance with the respective negiigence of the plaintiff and the defendant. The instruction complained of reads as follows:

“The court instructs the jury that, if the jury should believe from the evidence that some negiigence of the defendant caused, or contributed to the causation of, the accident, if the jury should also believe from the evidence that negiigence of the plaintiff also contributed to the causation of the accident, the jury may compare the negiigence of the parties, if any, and reduce the damages awarded the plaintiff in proportion to the degree of negligence, if any, attributable-to the plaintiff as causé of her injury. ”

The facts as detailed by the witnesses were that the plaintiff was crossing the street to catch a street car, and the defendant drove down the left side of the street and ran over the plaintiff; that an ordinance of the city of Biloxi, where the injury happened, prohibited a person from driving on the left side of the street, but required all drivers of automobiles to keep to the right. The plaintiff testified that she did not hear the approaeh of the automobile in which the defendant was riding, and did not hear the horn sounded, and that the automobile knocked her down, bruised her, and crushed her hand, and her finger and thumb were broken, and part of the hand had to be cut out; that she cannot use her hand as before, and is unable to make her living as ,a stenographer and typist, which was her means of livelihood. That she was receiving from one hundred to one hundred and fifty dollars per month as wages or salary from her work. Her statement of her injury was as follows:

“My hand was crushed and this finger and thumb broken; this part of the hand has been cut out, and my thumb is narrow here, and I can’t use it as before, and I am unable to make my living as a stenographer and typist, and while I can write some with a pencil I can’t use the typewriter, as I can’t operate the space bar. The contraction is in here. While this auto was across my chest, I think it was the grease pan, I was covered with grease, and I had a large hole torn in my left hand — I mean my knee — and I was black from my neck down from the fall to the pavement. Dr. Werlein came there, and Mrs. Hughes’ car was on me, and he directed the movement of the car off of me, and it took ten or twelve men to move the car.”

We think the giving of the above instruction was error, as the plaintiff was not required to anticipate the presence of the car on the left-hand side of the street in violation of the ordinance, and was not under duty to keep a lookout for the approach of automobiles and vehicles on the left-hand side.

The verdict of the jury is inadequate, and is probably caused by the misdirection contained in the said instruction. The cause will be reversed for the assessment of damages, but will be affirmed as to liability.

Reversed and remanded.