D'Antoni v. Teche Lines, Inc.

Citation143 So. 415,163 Miss. 668
Decision Date26 September 1932
Docket Number30096
PartiesD'ANTONI v. TECHE LINES, INC
CourtUnited States State Supreme Court of Mississippi

(Division B.)

1 NEGLIGENCE.

Plaintiff's contributory negligence is defense to action under Louisiana law, and bars his recovery where it was proximate, cause of injury, though defendant was also negligent.

2 AUTOMOBILES. Instruction to find for defendant bus company if both bus and plaintiff's automobile skidded toward each other and collided, though plaintiff's automobile was on right side of road, held error.

Such Instruction was error because, if plaintiff was on the proper side of the road and running in a prudent manner, and the bus was on its side of the road, but through the negligence of its driver struck plaintiff's automobile, then defendant bus company would be liable, in addition to which instruction did not negative negligence on the part of the bus, or place any hypothesis In it to charge the plaintiff with negligence.

3 TRIAL. Instruction to find for defendant bus company if jury were not satisfied, and unable to determine how collision occurred, held erroneous in not qualifying word "satisfied."

Such instruction was erroneous in not having after the word "satisfied" the qualification "from a preponderance of the evidence," since the jury are not required to be entirely satisfied but only reasonably satisfied by a preponderance of the evidence.

4 AUTOMOBILES. Instruction to find for defendant bus company if plaintiffs automobile had not stopped at right side of road but was traveling near center of road at time of collision, held erroneous.

Such instruction was erroneous, because the use of the words "near the center" were misleading, because it was not required that plaintiffs automobile should have stopped at the extreme right side of the road, or to have stopped at all, and because the instruction omitted the hypothesis as to where the bus was traveling, and did not properly limit the bus to its side of the road, or to a proper manner of operating.

5. AUTOMOBILES.

For motorist traveling in center of road prior to collision to turn to right and continue on proper side of road is not negligence.

6. AUTOMOBILES.

Giving instruction to find for defendant bus company, if bus and automobile were in center of road when one hundred feet apart, and both turned to right and rear ends collided, and that skidding was immaterial, held improper.

7. TBIAL. Instruction in substance that witnesses in automobile colliding with bus were interested, and witnesses in bus were disinterested, and to consider interest in weighing testimony, held error as comment on evidence (Code 1930, section 586).

Instruction was in substance that all occupants of the automobile at the time of collision who had sued on account of such collision were interested, and in weighing their testimony Jury should take into consideration their interest, and that passengers of bus were disinterested, and, if it reasonably appeared from the passengers' testimony that the bus was on the right-hand side of the center of the road at the time of the collision, then the jury should find for defendant bus company.

8. AUTOMOBILES.

Procedure in suit for automobile collision occurring in another state held governed by the laws of state where relief was sought.

Division B

APPEAL from circuit court of Adams county.

HON. R. L. CORBAN, Judge.

Suit by Rose D'Antoni against the Teche Lines, Inc. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Engle & Laub, of Natchez, for appellant.

The court gave the following instructions to the defendant in this case which were erroneous:

The court instructs the jury that if you believe that it is probably true that both the bus and the Buick were on their right hand side of the road and running at the same rate of speed and as they passed each other on account of the slippery condition of the road, one or both skidded towards the other and they collided, then there can be no recovery and your verdict should be for the defendant.

The court instructs the jury that if from all the evidence in the case you are not satisfied and you are unable to determine just how the collision did occur, then your verdict should be for the defendant.

The court instructs the jury for the defendant in this case that if you believe that by a preponderance of the evidence in this case it is established that the car in which the plaintiff was riding at the time of the collision had not stopped and was not stopped on the extreme right side of the road but was traveling in the highway near the center of the road at the time of the collision between it and the bus of the defendant, then it is you sworn duty under the law to find for the defendant and in such case your verdict should be 'We, the jury, find for the defendant."

One of the instructions undertakes to tell the jury, and does tell the jury that if they believed that the Buick car in which the plaintiffs, appellants, were riding had not stopped on the right hand side of the road at the time of the collision but that said car was proceeding at the time of the collision, then they should find for the defendant. The law and the facts nowhere justify this instruction.

It makes no difference whether the Buick car was at a standstill or whether it was moving at the time of the collision. The question to be decided by the jury was through whose negligence had the injury been inflicted. The motion or non-motion of the Buick car here was not an element as to liability. The question was whether the Buick car or the bus was on its proper side of the road, and the court foreclosed this question so far as the jury were concerned by telling them that unless the appellant proved by a preponderance of the evidence that the Buick car had been brought to a standstill before the accident then they must find for the appellee.

It was error to give the following instruction:

The court instructs the jury for the defendant in this case that if you believe that by a preponderance of the evidence in this case it is established that the car in which the plaintiff was riding at the time of the collision had not stopped and was not stopped on the extreme right side of the road, but was traveling on the highway near the center of the road at the time of the collision between it and the bus of the defendant, then it is your sworn duty under the law to find for the defendant and in such case your verdict should be, "We, the jury, find for the defendant."

By the above instruction the jury are told that they must find for the defendant if they believe by a preponderance of the evidence it is established (1) that plaintiff's car at the time of the collision had not stopped or (2) that it must have been stopped on the extreme right side of the road, and that this finding for the defendant must be made even though they believed that the Buick car was traveling in the highway near the center of the road at the time of the collision between it and the bus.

This instruction lays down the proposition to the jury that not only must the Buick car have stopped at the time of the collision in order for the plaintiff to recover, but that it must have been stopped on the extreme right side of the road.

The following instruction is erroneous in its statement of the law, the facts in this case considered.

The court instructs the jury that if you believe that it is probably true that both the bus and the Buick were on their right hand side of the road and running at the same rate of speed and as they passed each other on account of the slippery condition of the road, one or both skidded towards the other and they collided, then there can be no recovery and your verdict should be for the defendant.

This instruction nowhere states that the bus was not being handled or driven in a negligent manner, the condition of the road considered, the size and weight of the bus considered, but simply that if it was running at the same rate of speed as the Buick car and if it was on its right hand side of the road, then if there was skidding of one of them there could be no recovery.

The bus and Buick could be each on its right hand side of the road and running at the same rate of speed as they passed each other, and on account of the slippery condition of the road the bus skidded towards the Buick and there was a collision, still the jury could find a verdict for the plaintiff if they believed that this skidding was brought about through the negligent handling of the bus.

On account of the failure of the insertion of words in the instruction to the effect that the bus was not being driven in a negligent manner, the instruction is erroneous.

The court erred in giving the following instruction:

The court instructs the jury that if you believe from the evidence in this case that at the time of the collision both cars were travelling at about the same rate of speed, and when they were within about one hundred feet of each other they were both in the center of the road, and they both turned to their right; and the front ends of the cars passed each other without colliding and before the rear ends of the cars cleared each other, they collided then there can be no recovery and it is immaterial whether the bus skidded into the Buick or whether the Buick skidded into the bus and your verdict should be

"We, the jury, find for the defendant."

This instruction fails to state that the collision, after the fronts of the two cars had passed, was not brought about through the negligence of the bus driver or through the negligence upon the part of the defendant.

It was for the jury to say whether the passengers in the bus were...

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