152 So. 484 | Miss. | 1934
Appellant brought this action in the circuit court of the First judicial district of Hinds county against appellees to recover the sum of ten thousand four hundred dollars for personal injuries received by him, and damage to his automobile, caused by a collision between appellant's automobile, driven by him, and the automobile of appellee Weitz, driven by him while in the employ and engaged about the business of his principal, appellee Edward J. Moore Sons, Inc. The collision was alleged to have been caused by the negligence of appellee Weitz in operating his car. There was a trial, resulting in a verdict and judgment in favor of appellees; from that judgment appellant prosecutes this appeal.
Appellant was driving his car north on the Pocahontas road, in the country about three miles north of the city of Jackson. Appellee Weitz was going south in his car. A car was parked on the west side of the paved highway. The cars driven by appellant and Weitz, in trying to pass this parked car, collided, resulting in the personal injuries and damages sued for. The evidence demonstrated that the collision of the cars could not have been an accident, but was the result of the sole negligence of one or the other of the drivers.
The evidence for appellant, if true, showed that the collision was caused by the sole negligence of appellee *107 Weitz, while the evidence for appellees, if true, showed that it was the result of the sole negligence of appellant. The case was tried on that theory. That theory was embodied in appellant's instructions to the jury. In returning a verdict for appellees the jury necessarily found that the sole proximate cause of the collision was the negligence of appellant, and therefore appellee Weitz was not guilty of any negligence whatsoever proximately contributing to the collision.
Appellees plead the general issue alone. Appellant assigns and argues as error the giving of the following instruction for appellees: "The court instructs the jury for the defendant that if you believe from the preponderance of the evidence the negligence of the defendant, Weitz, was not the sole proximate cause of the accident but if you further believe from the evidence that any negligence of the plaintiff White contributed to the accident that then if your verdict is in favor of the plaintiff it shall be the duty of the jury to reduce the damages awarded the plaintiff in the same proportion that you believe from the evidence that any negligence of the said White contributed to the accident."
Appellant's argument is that it was error to give this instruction, because appellees did not specially plead contributory negligence. Sections 511 and 512 of the Code of 1930 provide that contributory negligence shall not bar a recovery, but shall diminish plaintiff's damages in proportion to his negligence, and that all questions of negligence and contributory negligence shall be for the jury. Appellant refers to numerous decisions of our court and the courts of other jurisdictions holding that contributory negligence must be specially pleaded when relied on as a defense to the action. It will be observed from the instruction that appellees were not invoking contributory negligence as a defense to the action, but in diminution of the damages, as authorized by our comparative negligence statute *108 (section 511, Code 1930). Conceding, without deciding, that appellant's contention is sound, nevertheless the giving of the instruction was without any harm whatever to appellant, because in rendering their verdict for appellees the jury found that appellant's negligence was the sole proximate cause of the injury. The instruction, therefore, did not come into use at all; the jury never reached the point of using it; there were no damages to be mitigated according to the verdict of the jury.
Appellant assigns and argues as error the giving of another instruction for appellees, which reads as follows: "The court instructs the jury for the defendants that if you believe from the evidence that G.B. White was driving his car at the time of the accident at a rate of speed in excess of forty (40) miles an hour then the said G.B. White is prima facie guilty of negligence."
Section 5569, Code 1930, provides, among other things, that the maximum rate of speed of motor vehicles in the country shall be forty miles an hour. Section 5581, Code 1930, provides that a violation of section 5569 and other sections of the Code regulating the manner of operating motor vehicles shall constitute a misdemeanor punishable by fine or imprisonment or both. Section 5588, Code 1930, provides as follows: "Nothing in this chapter shall be so construed as to curtail or abridge the right of any person to prosecute a civil suit for damages by reason of injuries to person or property resulting from the negligent use of the highways by any motor vehicle, or its owner, or his employee or agent. And in any action brought to recover any damages, either to person or property, caused by running or operating such motor vehicle in violation of any of the provisions of this chapter, the plaintiff or plaintiffs shall be deemed to have made out a prima facie case by showing the fact of such injury, and that such person or persons operating, or causing to be run or operated, such motor vehicle, *109 was at the time of the injury running or operating, or causing the said motor vehicle to be run or operated in a manner contrary to the provisions of this chapter."
Appellant's position with reference to this instruction is that all facts and circumstances of the collision were in evidence and, therefore, under New Orleans G.N.R.R. Co. v. Walden,
A like construction has been put upon section 6130, Code 1930, the statute prescribing the maximum rate of speed of railroad trains in municipalities. Excessive speed must be the proximate cause of the injury. Clisby v. M. O. Ry. Co.,
Appellant offered one Riser as a witness in rebuttal, by whom he undertook to show that appellee Weitz, on the afternoon of the collision of the cars, made a statement to him as to how the collision occurred, which was contradictory to that testified by him as a witness in his own behalf. Upon appellees' objection the court refused to permit the witness to so testify. Appellant thereupon requested permission to recall appellee Weitz for the purpose of laying the predicate for his contradiction by Riser, which the court refused to permit. The *111
principles laid down in the recent case of Roney v. State (Miss.),
The other assignments of error are minor in importance and involve questions of such a character as on another trial will probably disappear.
Reversed and remanded.