Myrick v. HolifieldMyrick v. Holifield
This case originated in the Circuit Court of the Second Judicial District of Jones County, Mississippi. The appellee, Henry O’Neal Holifield, charged in his declaration that appellants J. P. Myrick and Willis M. Huff were guilty of negligence which proximately caused certain persоnal injuries. The appellee’s proof was submitted to the jury, and it awarded a judgment of $10,-000 thereon. In the appellee’s declaration and bill of particulars, in response to appellant’s motion, the negligence ascribed to appellant Myrick, the admitted agent and servant of Huff, was to the effect that Myrick negligently and carelessly drove a thirty-six thousand pound tandem truck into the intersection of Magnolia Street and Central Avenue in Laurel while Myrick was traveling east on Central Avenue, and Holifield, who had first entered the intersection, was traveling south on Magnolia, driving a two-wheel scooter. The pleadings and proof showed that it was dark and Myrick was traveling without lights, in a highly reckless and dangerous manner at an excessive speed, failing to keep a propеr lookout, and to use due care and caution to avoid running into the appellee, and also failing to anticipate his presence. The testimony led the jury to the verdict rendered.
The appellee Holifield, at the time of the accident, Mаrch 21, 1957, was fourteen and one-half years old.
The appellant Myrick’s testimony is to thе effect that he was driving east on Center Street, stopped at the intersection and then proceeded, and on seeing the appellee approaching from the north, he speeded up his truck to avoid hitting him, and that he was beyond the
The Court is of the opinion that liability was a question for the jury to decide.
The appellants argue that the lower court erred in refusing to give them a peremptory instruction, and that the verdict was based upon a mathematical impossibility. The appellants were charged with negligence. A question of fact arose from the pleading and the proof as to which vehicle entered the intersection first and thus aсquired priority of the right-of-way. The proof was ample to substantiate appellee’s theory that he first entered the intersection, prior to the entry of the appellant Myrick, thus giving appellee the priority of right-of-way. This issue was clearly and sharply marked in the testimony, and the jury’s verdict thus rejected appellants’ theory.
The jury was instructed that appellant Myrick was under a duty to keep his truck under reasonable control, and to anticipate the presence of appellee and others in using the public street. The failure to do so under all of the surrounding circumstances and conditions shown by the evidence, if the same were the proximate cause of the collision, would justify a verdict for appellee. Further, the jury was instructed that the failure to operate his truck without lights was negligence under the law, if they so believed that this was being done. Also, that appellants were under a duty to operate the truck at no greater rate of speed than was reasonable and proper, having due regard to thе traffic and use of the street; and that appellant was further required to keep a reasonable lookout for others using the said street, and that failure to observe either or all of these requirements, if believed by the jury, was negligence.
The appellants contend that the verdict is based on a mathematical impossibility. All of the statements of witnesses concerning distance and speed were estimates,
The court refused for the appellants the following instruction: “The Court instructs the jury for the defendants that under the undisputed evidence in this case, the plaintiff, Henry O’Neal Holifield, was guilty of negligence as a matter of law, and if you find from the evidence that his said negligence was the sole, proximate cause of his own injuries, it is your sworn duty to return a verdict for the defendants.” This instruction is based on a statute which prevents a boy under fifteen yеars of age from acquiring a license to operate a motor vehicle. It would peremptorily instruct the jury that appellee was negligent by reason of the fact that he was only fourteen years of age at the time of the collision and was prevented by statnte from acquiring a license to drive a motor vehicle. The appellants make the point that the violation of a statute or ordinance constitutes negligence. The lower court was correct in refusing this instruction.
The appellants do not cite any authority from this Court holding that the failure of an operator to have an operator’s license will bar him from recovery, nor any authority to substantiate the point that the mere violation of a statute forbidding the operation of an automobile or motor scooter without a license raises an inference of negligence. We find no such authority in Mississippi.
“An infant operating* a motorcycle on a public highway in violation of a statute whiсh imposes a penalty therefor, and which by its terms is conclusively controlling on the punishment for its violation, is not a trespasser in the sense that he is precluded from recovering damages for personal injuries negligently inflicted upon him by another to which his youth in no wаy contributed.
“Even in Massachusetts, where the owner or operator of the unlicensed automobile cannot recover, the operator who has no license is not precluded from recovery by that fact alone; at least one who has еmployed an unlicensed person to operate the car is not precluded from recovery.”
See also 163 A. L. R. 1375, supplementing other annotations on the subject. Only Massachusetts seems to follow the minority rule. What better reason could this Court have thаn to ask itself the perfectly logical question, “To what end and with what probative value does the failure to acquire an operator’s license have on the issue of whether the driver of a vehicle was negligent on the specific occasiоn in question?” Most legal minds would obviously answer that it has none, and is totally irrelevant to the issue. The duty owing to an opposite party in an action of negligence must be capable of having some causal connection between it and
Appellants next argue that the court erred in failing to grant an instruction on contributory or comparative negligence. The instruction requested by the appellants on contributory negligence was refused by the court, and the following was marked on the instruction: “Refused because contributory negligence is an affirmative defense.” Reading thе appellants answer and affirmative defense set up in their answer, the Court is unable to find any reference to a pleading of contributory negligence as an affirmative defense. The learned judge who tried the case did not so understand appellаnts answer. After the court refused the instruction on contributory negligence, the appellants did not make a request to reopen the case and amend the answer, setting up a defense, of contributory negligence.
Our Court has held that contributory negligence is a defense, must be proved by the defendant, and the duty is upon the defendant to request an instruction on contributory negligence. In 1954, the case of Jefferson Funeral Home, et al. v. Pinson, Admrx.,
Subsection 4 of Section 1475.5, Miss. Code of 1942, Recompiled, states: “If the defendant desire to prove by way of defense in an action, any affirmative matter in avoidance, which by lаw may have been proved heretofore under special plea he shall set forth in his answer to the action such affirmative matter and incorporate such defense therein, otherwise such matter shall not be allowed to be proved at the trial; and said answer shall fully set forth any special matter which the defendant intends to give in evidence in bar of the action
Under our modern practice the defense of contributory negligence or comparative negligence must not
The judgment of the lower court is affirmed.
Affirmed.