Basque v. Anticich

• Court: Mississippi Supreme Court
• Writing for the Court: McGowen, J.
• Citation: Basque v. Anticich, 177 Miss. 855, 172 So. 141 (Miss. 1937)
• Decision Date: 25 January 1937
• Docket Number: 32535
• Parties: BASQUE v. ANTICICH

172 So. 141

177 Miss. 855

BASQUE v. ANTICICH

No. 32535

Supreme Court of Mississippi

January 25, 1937

Division A

1 DAMAGES.

Where declaration in action for bodily injuries resulting from automobile collision alleged permanent injuries to kidneys back, leg, and female organs, plaintiff's testimony in response to eliciting question that she suffered terrible pain in lower part of back during her monthly periods and had not so suffered before held improperly excluded, as bearing on damages, though she had previously denied having pains in parts of her body other than those already testified to.

2 AUTOMOBILES.

Issue of injured pedestrian's contributory negligence in walking on right side of highway was properly submitted to jury, under statute requiring pedestrians to walk on left side (Code 1930, section 5574).

HON. W A. WHITE, Judge.

APPEAL from the circuit court of Harrison county HON. W. A. WHITE, Judge.

Action by Lucile Basque, a minor, against Mrs. Mary Anticich. Verdict for plaintiff. From an order overruling a motion for a new trial on grounds of inadequacy of verdict, plaintiff appeals. Affirmed as to liability; reversed and remaned as to amount of damages.

Affirmed as to liability; reversed and remanded as to amount of damages.

Bidwell Adam, of Gulfport, and Chalmers Potter, of Jackson, for appellant.

The exclusion of the testimony of the plaintiff of the evidence had in the absence of the jury is manifestly reversible.

As we understand the rule, any evidence which logically tends to prove the issues, or any of them, that are involved in the case, is competent. The extent of the plaintiff's injuries was one of the issues in the court below and the only issue before this court.

A contradiction by a witness only goes to the weight of such witness' testimony and is solely a jury question and cannot, in our opinion, affect the competency, and now that the jury has returned a verdict for the plaintiff for this small amount, where the court was almost driven to grant a directed verdict to the plaintiff, we certainly submit that the exclusion off. this important element of damage constituted grave and reversible error.

If the operator of a machine is blinded by a light from another vehicle or from a street car, so that he is unable to distinguish an object in front, reasonable care requires that he bring his vehicle to a stop.

3-4 Huddy's Automobile Law, 243.

It is the duty of the driver of an automobile to stop his car when his vision is entirely obscured by a temporary obstruction, such as a cloud of dust or smoke screen. When failure to do so would jeopardize the safety of others, then he must remain at a standstill until the obstruction has come to an end.

1 Blashfield's Encyc. of Automobile Law, page 370; Dominick v. Haynes Bros., 127 So. 31; Divine v. Chester, 144 A. 322, 7 N. J. Misc. 131; Berddenberg v. Kavanaugh, 17 Ohio App. 252; Hammond v. Morrison, 90 N. J. Law 15, 100 A. 54.

The verdict is inadequate.

The court instructed the jury that it was this young lady's duty to walk against the traffic, and while this is the law, this was a condition and not a contributing cause to her injury. Then, too, a comparative negligence instruction was granted. Manifestly the jury was misled by these two instructions into believing that they should reduce whatever damages they would have otherwise awarded merely because of the fact that plaintiff was walking with and not against the traffic. This being so, not only is it not true that the court cannot say with all reasonable degree of certainty that plaintiff was not prejudiced thereby, but, on the contrary, is it not reasonably certain that she was.

Leathers, Wallace & Greaves, of Gulfport, for appellee.

The testimony of the two physicians in this case, who treated appellant, is wholly silent about any injuries to the appellant's female organs and as to any disturbance of her menstrual function. It is significant that appellant was treated by Dr. Weeks from the very beginning (though she did not call him to the witness stand to testify in her behalf), and she was also treated by him several days subsequent to the accident, and at no place in Dr. Weeks' testimony does he refer to any complaint to him by the appellant that she had sustained any injury such as that last above referred to, and as to which her testimony was excluded by the court, after she had been given full opportunity, on direct examination, to narrate and specify all of her injuries and complaints.

We submit that if appellant was suffering with this character of ailment as a result of the accident, that it is most significant that she did not mention the fact to either one of the physicians who treated her, and it is furthermore significant that if she had informed these physicians about it, they would certainly have known about it, and it may be reasonably assumed that they would have made an examination and diagnosis as to this particular menstrual complaint, in which event the appellant could certainly have proven that alleged disorder by her physicians.

All that the court did was to exclude testimony, the effect of which would have been to allow the appellant to magnify and comment on her injuries beyond the reasonable and permissible limits allowed by the applicable rules of evidence in such instances, and the action of the court in so doing was manifestly proper because if appellant had been permitted to do that, after having been given a full opportunity to state all of the injuries which she had suffered, the effect of it would have been to prejudice the rights of the defendant, contrary to the law and rules of evidence applicable in such situations.

The most that can be said about this case, when boiled down to its final analysis, is that the jury, by its verdict concluded that Mrs. Anticich was guilty of negligence and also found that the appellant was guilty of negligence which contributed to appellant's injuries;...