85 So. 2d 179 | Miss. | 1956
The appellee brought suit against appellants for the recovery of damages because of personal injuries sustained by him when a pickup truck which he was driving collided with a passenger bus of appellant Continental Southern Lines, Inc., driven by the appellant William Ray Conlee, at a point about three miles east of the town
The bus had been stopped with approximately one-half thereof on the main traveled and paved portion of the highway. It had driven a distance of about seventy miles from Jackson and there had been a misting rain all the way from Jackson to the scene of the accident. The highway runs in an easterly direction and while the bus was stopped and discharging two passengers, the appellee drove into the rear end of the bus.
The first five points argued by appellant may be summarized into the one contention that the bus driver was not guilty of any negligence and that consequently the appellants were entitled to • a peremptory instruction. Appellants rely heavily on the case of Teche Lines, Inc. v. Danforth, 195 Miss. 226, 12 So. 2d 784, which involved an interpretation of Section 8215, Code of 1942, which is to the effect that no vehicle shall be stopped or parked upon the paved or improved or main traveled part of a highway when it is practical to stop or park the vehicle off such part of the highway but in every event a clear and unobstructed width of at least twenty feet of such traveled part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available for a distance of two hundred feet in each direction upon said highway. In the Danforth case a bus had been stopped without leaving the twenty feet of clearance and it was shown that there was no other place nearby where it could be stopped with the sufficient twenty-foot clearance. Even in that case the Court held that the question of liability was for the jury. It reversed the judgment of the lower court and remanded the case for a new trial because of error in one of the plaintiff’s instructions. The ruling in the Danforth case is summed up in the last two paragraphs of the opinion as follows:
“We pretermit all other questions raised in this case. We have preferred to confine this opinion to the one issue presented by the quoted instruction and the error therein. And it must be noted that we have not decided anything about the parking of vehicles or leaving them standing. Nor anything about the feature mentioned in Kelly v. Locke, supra (186 Ga. 620, 198 S. E. 754), that a driver may be required to go forward to a place where there is an available and safe space, sufficient to allow a compliance with all the literal terms of the statute, if within a reasonably short distance ahead, and if such place be known to, or observable by, the driver in the exercise of a reasonable diligence. The feature mentioned in the foregoing sentence was not submitted to the jury by the quoted instruction, but in fact by the import of the instruction was taken from the jury, even if there had been evidence sufficient to go to the jury on that issue. ” . .
There was a conflict:in the evidence in this case. The accident occurred • on a straight stretch of road where there was no curve for a mile; or more. At the scene of the accident Highway 80 is: intersected by a link of Old Highway 80 which crosses-, at an oblique angle. That part of the old highway on: the north, side of the new highway was still maintained.for local traffic and was a
After the accident a highway patrolman arrived on the scene in a few minutes and had the bus-driver pull ahead and cross the road and park his vehicle on the old Highway 80 on the north side of the new highway. We think the facts in this case are entirely different-from those shown in the Danforth case, but even
The appellants next contend that the trial court should have instructed the jury that the plaintiff was guilty of contributory negligence as a matter of law. According to the proof for the plaintiff it was misting rain and foggy and the visibility was poor. He was travelling about 25 or 30 miles per hour. The bus had been in the rain for approximately 70 miles. The plaintiff said that the lights on the bus were so dim that he could not see them until he was within 25 or 30 feet of the bus. It is argued that litter and dirt from the roadway had spattered upon the lights and had obscured them. We think this was a question for the jury. Section 1455, Code of 1942, provides: “All questions of negligence and contributory negligence shall be for the jury to determine.” We do not hold that it is never proper to peremptorily charge the jury that the plaintiff was guilty of contributory negligence as a matter of law, but we think that under the facts of this case the question was for determination by the jury. The question of the plaintiff’s contributory negligence was submitted to the jury for decision by an instruction which the defendant ob
Complaint is next made that the plaintiff’s main instruction on liability is erroneous. The instruction follows the rule which was announced in the Dan-forth case, and we find only one error therein. It says ‘ ‘ The court instructs the jury for the plaintiff that if you believe”, and it fails to say “from the evidence”. Section 58 of Alexander’s Mississippi Jury Instructions contains a discussion of this matter and says: “The omission of this phrase has been repeatedly condemned but divergent results have been followed in adjudging its effect. The conclusion of the matter is that such omission is error. Whether it is reversible depends upon such factors as the evident guilt of the defendant and the curative effect of other instructions.” The appellants obtained an instruction that the burden is upon the plaintiff to prove his case by a preponderance of the evidence. It also obtained several instructions emphasizing the rule laid down in the Danforth case, as well as numerous other instructions' covering every conceivable phase of the law, and we that while the instruction is erroneous in omitting the words “from the evidence”, such omission under the circumstances here presented does not constitute reversible error. In Noble v. State, (Miss.) 72 So. 2d 687, 691, we said: “It is also argued that the above mentioned instruction was erroneous in that it failed to require that the jury believe ‘from the evidence’ beyond a reasonable doubt that the defendant was guilty as charged in the indictment. But the omission of the words ‘from the evidence’ in this instruction was cured by other instructions granted to the State and to the defendant. ’ ’
It is next contended that the verdict for $29,-000.00 is so grossly excessive as to require another trial.
The accident in this case occurred in Newton County. The appellant Conlee is a resident citizen of Hinds County. Continental Southern Lines, Inc., is a Louisiana corporation and its resident agent in Mississippi resides in Hinds County. Admittedly the defendant Continental Southern Lines, Inc., operates a regularly scheduled bus line for the transportation of passengers not only in Hinds and Newton Counties but also in and through Lauderdale County where this suit was filed. The appellants made a motion in the lower court for a change of venue, which motion was overruled and that
It follows that the judgment appealed from should be and the same is hereby affirmed.
Affirmed.
ON SUGGESTION OF EBBOB
In the decision rendered on February 6, 1956, in the above styled cause, we stated in paragraph 7 of our opinion, in discussing the issues that were for decision by the jury, that: “There was clearly an issue as to whether or not the bus driver could have stopped his bus on the wide portion of the shoulder to the south of the highway, and whether, having passed that area by a few feet, he should have backed up and stopped in the area on the south side or whether he should have pulled over to the north side of the highway and stopped to discharge his passengers in the old highway on the north
However, the Court had further concluded to adhere to its former decision as to the result reached by the affirmance of the case.
Suggestion of error overruled.