Duvigneaud v. Jenkins

129 So. 2d 629 | Miss. | 1961

Gillespie, J.

Jenkins, plaintiff below and appellee here, sued Duvigneand, defendant below and appellant here, for personal injuries. Tbe court gave plaintiff a peremptory instruction on liability for compensatory damages, denied defendant an instruction submitting tbe question of contributory negligence of plaintiff, and submitted to tbe jury tbe question of punitive damages. A verdict was returned in favor of plaintiff for $3,300 actual and $5,000 punitive damages. Judgment was entered accordingly and defendant appeals.

Stated in tbe light most favorable to appellee, tbe material facts are as follows. Appellant parked a borrowed automobile in a no parking zone on a Pascagoula street. Someone called bis attention to tbe fact tbat it was a no parking zone and appellant stated tbat be would park where be damned pleased. Some time later, after appellant bad gone to a nearby store, be returned to tbe automobile, started tbe engine, looked to bis rear and saw nothing and backed up rapidly a distance estimated variously from six feet to two car lengths. In backing up appellant turned bis front wheels so tbat tbe rear fender or tail fin of tbe automobile extended over tbe curb and struck appellee who was standing on tbe edge of tbe curb with bis back to tbe street. One witness who did not see tbe actual collision but who saw tbe car when it started backward said it shot back like a bullet. This witness was in a show window inside a store. Another witness for appellee who was standing facing appellee testified tbat appellant backed up ‘ ‘ pretty fast ’ ’. Appellee stated tbat appellant backed up at a high rate of speed but be judged it not from seeing tbe automobile but from tbe lick be sustained. It is shown tbat appellant immediately stopped tbe car when someone called to him, and tbe wheels did not bit or jump tbe curb.

We are of tbe opinion tbat tbe question of punitive damages should not have been submitted to tbe jury. The statement appellant is said to have made when he parked the car is no indication of malice or wantonness when he later returned to the car and backed up to leave the curb. Undoubtedly appellant was guilty of negligence as a matter of law, but we think that he was guilty only of simple negligence. It is undisputed that he looked to his rear before he backed up and saw no one. Appellant’s carelessness was not such gross negligence as to indicate wilfulness or a wanton disregard for the safety of others. Cf. Morris v. Huff, 238 Miss. 111, 117 So. 2d 800.

Appellant argues four other questions which, in our opinion, are not so serious as to require comment.

The judgment is reversed as to the allowance of punitive damages and judgment is rendered here on that issue. The case is affirmed for $3,300 compensatory damages.

Affirmed in part and reversed in part.

McGehee, C. J., and Kyle, McElroy and Jones, JJ., concur.