58 So. 2d 364 | Miss. | 1952
Lead Opinion
The appellees, who are the father, mother, brothers, and sisters and only heirs at law of Kenneth Crapps, deceased, brought this suit against the appellants and Gaddis N. Trest, seeking to recover damages for the alleged wrongful death of the said Kenneth Crapps, resulting from a collision between a GMC truck of the Film Transit, Inc., driven at the time by O. G. Bridges, and a Chevrolet automobile belonging to and driven by Gaddis N. Trest, and in which Kenneth Crapps was riding as a guest.
The trial resulted in a verdict and judgment for the appellees in the amount of $12,500, from which the Film Transit, Inc., and O. G. Bridges appeal. There is no appeal by Gaddis N. Trest.
The collision occurred1 at about 4:30 o’clock on the morning of April 30, 1950, on U. S. Highway 35, about six miles north of Forest. The highway was a black-top highway. It was rainy and the pavement was wet and slippery. The Trest -automobile was proceeding in a northerly direction and travelling at a rate of speed of about 35 miles- per hour. The truck of the Film
There was testimony to the effect that Bridges saw the Trest automobile when it first went off of the pavement and that he did not slacken his speed. He testified that he did not know that the Trest automobile was out of control until it was within 30 or 35 feet from him and it was then too late to avoid the collision.
It was the contention of the appellees that Bridges knew, or should have known in the exercise of reasonable care, that the Trest automobile was out of control when it went off of the pavement and that it was likely to cut back on the pavement and precipitate a collision and that he was negligent in failing to take reasonable precaution to slacken his speed and bring his truck under control and avoid the collision. On the other hand, it was the contention of appellants that Bridges was driving the truck at a lawful and reasonable rate of speed and on his right side of the highway and had no reason to anticipate that the Trest automobile would be driven to his- side of the highway and in his path, and that he did not know that the Trest automobile was out of control until he was within 30 to 35 feet of it, and that at that time it was not possible for him to stop his truck or slacken his speed so as to avoid the collision.
According to the views of a majority of the Court, however, the granting' of instruction No. 6 to the appellees constitutes reversible error. This instruction is as follows:
“The court instructs the jury for the plaintiff that, if you believe from a preponderance of the evidence that O. G. Bridges saw, or in the exercise of reasonable care, could have seen that the Trest automobile was not under control immediately prior to the collision, and, if you further believe from a preponderance of the evidence that O. G. Bridges, in the exercise of reasonable care, foresaw or should have foreseen that the Trest automobile, being out of control, would likely proceed into the west lane of Highway No. 35, and that the said O'. G. Bridges negligently failed to stop his said truck or to reasonably slow down in order to enable him to-stop, if failure it was, and that such failure if so it was, proximately caused or contributed to the collision and death of plaintiffs’ deceased, then it is your sworn duty to return a verdict for the plaintiffs against O. G. Bridges and Film Transit, Inc. ’ ’
The majority of the Court are of the opinion that this instruction imposed too great a burden upon the appellants. It told the jury that if they believed from a preponderance of the evidence that Bridges saw, or in the exercise of reasonable care, could have seen that the Trest automobile was not under control immediately prior to the collision, and that being out of con
It is argued, however, that the error of this instruction
“The court instructs the jury for defendants, Film Transit and O. Gr. Bridges, that if you believe from the evidence in this case that the defendant Bridges was driving his truck south on Highway 35 some 5 or 6 miles north of Forest and that he was driving same on his right hand side of the highway and at a reasonable rate of speed, under the circumstances then existing, and that the defendant, Mr. Trest, was driving north on said highway and the two vehicles were meeting and that the drivers of the two vehicles each dimmed their headlights when they were some distance apart, and thereafter the Trest car was pulled or slid to the right and its two right wheels were off the paved portion of the highway and the car ran some distance with the right wheels off the pavement and practically parallel to the edges of the pavement and that it suddenly ran onto the pavement and across the highway directly in front of the Bridges truck and that Bridges did not realize the car was out of control or in trouble until it was within 30 or 35 feet from his truck and that he then acted as a reasonably prudent person would have acted under the circumstances, it will be your duty to find for defendants, Film Transit and Bridges, and to assess no damages against either of these two defendants. ’ ’
The majority of the Court think this instruction not only did not cure the error of the said instruction No. 6 for the appellees, but that it aggravated the error in that the two instructions are contradictory and conflicting. In the latter instruction, the jury were told that if Bridges did not realize that the Trest automobile was out of control until it was within 30 or 35 feet from the truck and that he then acted as a reasonably prudent person under the circumstances, he was relieved of liability. In the former instruction, the jury were told that if he should have known that the Trest automobile was out of control immediately prior to the collision, his
Tbe majority of tbe Court are unable to say that tbe error heretofore pointed out in said instruction No. 6 and tbe irreconcilable conflict between that instruction and tbe above quoted instruction granted to the appellants did not prejudicially influence tbe verdict of the jury and it follows, therefore, that tbe judgment of tbe court below should1 be and it is reversed and remanded for a new trial.
Reversed and remanded.
Dissenting Opinion
(dissenting).
I respectfully dissent from tbe majority bolding in this case to tbe effect that tbe two quoted instructions were in irreconcilable conflict. I think the controlling opinion is erroneous and that this error arises from tbe fact that tbe opinion places undue emphasis on the word “immediately” and gives it a strained and narrow
In 42 C. J. S., pages 387-388, the following is said with reference to the word “immediate”:
“A comprehensive and elastic term, of no very definite signification, but admitting of many varieties of definition, depending on the context, the connection in which it is used, or on the facts of each case. It is the indicium of a time interval as well as that of an interval of space; is used in ordinary language as a relative and comparative term, of relative signification, and so it is often not construed in its usual meaning. It is not a technical word, for to give the term its literal signification, regardless of the attending situations and circumstances, would defeat meritorious claims, in many cases, on purely technical grounds * * * Relating to Time. In a strict sense, it has been defined as meaning at the present instant; instant, without any delay, or without any time intervening, not deferred by any lapse of time, present, or presently. It is, however, often used, like similar absolute expressions, with less strictness than the literal meaning requires; and, so used, it has been said that the word does not mean ‘instant,’ and is never employed to designate, or refer to, an exact portion of time; but it has been construed to mean as soon as reasonably practicable under the circumstances, near in time, within a reasonable time, having due regard to the nature and circumstances of the case, without unreasonable and unnecessary delay, or with reasonable diligence. ’ ’
Turning now to the word “immediately” which is used in the plaintiff’s instruction and which is condemned by the majority opinion, we find the following in 42 C. J. S., pages 390-393: “The word is an adverb, or the adverbial form, of ‘immediate,’ defined above, and, like that word, is an elastic and relative term, admitting of much variety of definition; and, as indicated in the fol
I have not been able to find a single Mississippi case which holds that the word “immediately” means “instantly”, and the majority opinion in this case is the first time we have so construed it. Here the majority holds that it means “an infinitesimal period of time”
As stated in the fourth paragraph of the controlling-opinion ‘ ‘ There was testimony to the effect that Bridges saw the Trest automobile when it first went off of the pavement and that he did not slacken his speed. ” At that time “the vehicles were within about 400 feet of each other” as conceded in the third paragraph of the controlling’ opinion. The issue for the jury was whether Bridges then saw or in the exercise of reasonable care could have seen that the Trest automobile was not under control; in point of time, under the above authorities, the moment when Bridges saw that the Trest automobile went off the pavement was “immediately” prior to the collision. The defendant’s instruction quoted in the controlling opinion plainly told the jury that if “Bridges did not realize the (Trest) car was out of control or in trouble until it was within 30 or 35 feet from his truck and that he then acted as a reasonably prudent person would have acted under the circumstances, it will be
In Lamar Hardwood Company v. Case, 143 Miss. 277, 290, 107 So. 868, 870, this Court said: “We have often announced in this court that the instructions must be taken together and be construed as a whole, one as modifying, explaining or qualifying another; and, if the instructions taken as a whole correctly announce the law applicable to the case, we will not reverse the judgment because of an imperfect single instruction.” Again, in Alabama & Vicksburg R. R. Company v. Fountain, 145 Miss. 515, 111 So. 153, 155, we said: “It is familiar learning that all of the instructions are to be construed together, and, if when so construed, they fairly state the law, the judgment will not be reversed, even though there may be slight inaccuracies in particular instructions.” In City of Jackson v. Lewis, 142 Miss. 806, 108 So. 156, 157, we said: “We think the criticism of the instruction, taken alone, is well founded, but, construed in connection with the other instructions in the case, it was not calculated to mislead the jury. ’ ’ In Gulfport Fertilizer Company v. Bilbo, 178 Miss. 791, 174 So. 65, 66, we said: “All instructions in a case must be read and considered together as one, and when this instruction is read in connection with, and as a part of, the appellee’s instruction, referred to above, we think the jury was furnished with a fair guide as to the measure of duty of the master, and that, consequently, the error in appellee’s instruction does not justify or require a reversal. ” In Green v. Maddox, 168 Miss. 171, 149 So. 882, 883, 151 So. 160, we said: “It may be conceded that the instruction was erroneous; nevertheless, taken in connection with the other instructions in the case, it was not misleading to the jury. ’ ’ In
Let us then examine the record as to some of the other instructions which were granted in this case, hearing in mind that the collision in question occurred on a dark night, in a drizzling rain, on a level stretch of paved highway which Bridges knew to he wet and slippery, and after Bridges admittedly saw about 400 feet away that the right wheels of the Trest car had gone off the pavement and onto the shoulder of the road, and that the issue was whether Bridges then saw that the Trest car was in trouble or out of control and whether he should have reduced the speed of the truck in view of all the circumstancés then existing. The plaintiff’s instructions Nos. 4 and 5 are as follows:
“The court instructs the jury for plaintiffs that even though you may believe from a preponderance of the evidence that Gaddis Trest was negligent in driving' his automobile into the west lane of Highway No. 35 at the time testified about, and that such negligence proximately contributed to the collision and death of plaintiffs’ deceased, yet, if you further believe from a preponderance of the evidence that O. G. Bridges was negligent in driving his truck at an excessive and dangerous speed under the circumstances and conditions then existing, or that O. G. Bridges was negligent in failing to stop his truck or to reasonably slow down his truck to enable him to stop, and that such negligence, if any, proximately contributed to the collision and death of plaintiffs’ de*142 ceased, then it is your sworn duty to return a verdict for plaintiffs against all defendants. ’ ’
‘ ‘ The court instructs the jury for the plaintiff that the law imposes upon the driver of an automobile the duty to use that degree of care and caution which an ordinarily prudent person would exercise under the same or similar circumstances, and if you believe from a preponderance of the evidence that O. G. Bridges failed to use that degree of care and caution in the speed and in the control of his truck which an ordinarily prudent person would exercise under the same or similar circumstances, and that such failure, if any, proximately caused or contributed to the collision and to the death of plaintiffs’ deceased, then, it is your duty to return a verdict for the plaintiffs against O. G. Bridges and Film Transit, Inc.”
The defendant obtained the following instructions:
“The court instructs the jury for Film Transit and Bridges that you cannot return a verdict against these two defendants based on conjecture or guess or possibility. It is the law that plaintiffs have the duty and burden to prove by evidence the charge of negligence made by plaintiffs against these defendants and the amount of evidence required to be produced to substantiate plaintiffs’ charge is a preponderance or greater weight of the evidence. and if plaintiffs have failed in this regard your verdict should he in favor of these two defendants.
“The Court instructs the jury for the defendants, Film Transit and Bridges, that if you find from the evidence in the case that Mr. Trest was guilty of negligence in the handling or driving of his car and that Bridges handled and drove his truck just before and at the time of the accident as a reasonably prudent person would have under the circumstances, it will he your duty to find in favor of Film Transit and Bridges and not to award any damages to plaintiffs against either Film Transit or Bridges.”
*143 ‘ ‘ The Court instructs the jury for Film Transit and Bridges that even though you may believe that Bridges saw Mr. Trest’s car when its right wheels ran onto the shoulder of the road, yet you cannot find a verdict against Film Transit or Bridges, unless you further believe from a preponderance of the evidence that Bridges, from what he saw, should have reasonably foreseen that Mr. Trest would probably run his car suddenly across the center of the highway before the two vehicles could pass each other, and that Bridges acted negligently in proceeding as he did. ’ ’
“The court instructs the jury for Film Transit and Bridges that you should consider the case and your verdict separately as to Film Transit and Bridges and the other defendant, Mr. Trest, and that you cannot find against Film Transit and Bridges on account of any negligence of Mr. Trest alone, if any, for you cannot find a verdict against Film Transit and Bridges, unless the plaintiff has proved to the jury by a preponderance or greater weight of the evidence that Film Transit and Bridges were guilty of negligence as plaintiff charged and unless plaintiffs have so proved your verdict should be for dedants, Film Transit and Bridges. ’ ’
‘ ‘ The court instructs the jury for Film Transit and Bridges that is is not enough for plaintiffs to prove that there was an accident and that the deceased was injured and killed in the accident to warrant you in finding against these two defendants, for it is the law that before you can return a verdict against these two defendants plaintiffs must prove to you by a preponderance of the evidence that these two defendants were actually guilty of negligence charged against them by plaintiffs and if plaintiffs have failed to prove that these two defendants were guilty of such negligence your verdict should be in favor of these two defendants.”
The jury was fully and fairly charged as to the law of the case and as to the issue which was submitted to them when all the instructions are considered together and as one full statement of the law, as we have repeatedly held
‘ ‘ The court instructs the jury for Film Transit and Bridges, that when the operator of a motor vehicle is, by a sudden emergency, not of his own mailing, placed in a position of imminent peril to himself, or to another, without sufficient time in which to determine with certainty the best course to pursue, he is not held to the same accuracy of judgment as is required of him under ordinary circumstances, and is not liable for injuries caused by his motor vehicle if an accident occurs even though a course of action other than that which he pursues might be more judicidus, provided he exercises ordinary care in the stress of circumstances to avoid an accident. ’ ’
‘ ‘ The court instructs the' jury for defendants, Film Transit and O. Gr. Bridges, that if you believe the collision of the truck and the Trest automobile was a' simple accident insofar as Film Transit and Bridges are concerned and without being contributed to by any negligence oil the part of the said defendants, it will be your duty as jurors to return your verdict in favor of these two defendants.”
“The court instructs the jury for Film Transit and O. Gf. Bridges that plaintiffs have charged in their declaration that these two defendants were guilty of negligence proximately causing or contributing to the collision of the truck and automobile of Mr. Trest. The burden of proof rests upon plaintiffs not only to prove that the deceased was killed as a result of the collision of the truck and the automobile, but also to prove by the preponderance of the evidence or the greater weight of the testimony that Bridges was guilty of negligence in the manner in which he drove the truck just before and at the time of the collision of the truck and automobile and that such negligence, if any, was a proximate cause of the said collision*146 and of the death of the deceased. These defendants are not responsible for any negligence on the part of Mr. Trest and he alone is responsible for his own negligence, if any. ’ ’
It seems clear to me that when all these instructions are ‘ ‘ taken together ’ ’ and ‘ ‘ construed as a whole, one as modifying, explaining or qualifying another” then they ££correctly announce the law applicable to the case”. Lamar Hardwood Company v. Case, supra. Certainly they inform the jury with unusual clarity that before they can award any damages against Film Transit and Bridges they must believe from a preponderance of the evidence that Bridges £ £ saw, or by the exercise of reasonable care should have seen that defendant, Gaddis N. Trest, had lost control of his automobile * * * at a time and at a distance, when and where, by the exercise of reasonable care and caution, ’ ’ as alleged, in the declaration, Bridges could and should have stopped his truck or reduced its speed so as to either avoid the collision with the Trest automobile or to bring his truck down to such a speed that a collision, if there had been one, would not have wrought the almost inconceivable havoc which the record shows to have resulted on the occasion here in question. I do not think the two' instructions set out at length in the controlling opinion are in irreconcilable conflict with each other. To the contrary it is my view that when all the instructions are considered together the jury was fairly charged as to the applicable law. For these reasons I respectfully dissent.