Bridges v. Crapps (State Report Title: Film Transit Co., et al. v. Crapps, et al.)

• Decision Date: 28 April 1952
• Docket Number: No. 38289,38289
• Citation: 214 Miss. 126,58 So.2d 364
• Parties: BRIDGES et al. v. CRAPPS et al.
• Court: Mississippi Supreme Court

Page 364

58 So.2d 364

214 Miss. 126

BRIDGES et al. v. CRAPPS et al.

No. 38289.

Supreme Court of Mississippi.

April 28, 1952.

Snow & Covington, Meridian, O. B. Triplett Jr., Forest, for appellants.

Roy N. Lee, Forest, for appellees.

HOLMES, Justice.

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 of 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 occurred 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 traveling at a rate of speed of about 35 miles per hour. The truck of the Film Transit, Inc., loaded with motion picture films, newspapers, and merchandise for delivery in the course of its business, was proceeding in a southerly direction and traveling at a rate of speed of from 40 to 45 miles per hour. As the vehicles approached each other, each dimmed their lights and each was traveling on the right side of the highway. When the vehicles were within about 400 feet of each other, the Trest automobile went off of the pavement on its right side and traveled in a straight line, with its right front and rear wheels about two feet off of the pavement, for a distance of 180 or 185 feet, when it suddenly turned back on the pavement and went across the pavement in the pathway of the on-coming truck and was struck by the truck and practically demolished, and Kenneth Crapps was killed.

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 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. In view of the fact that this case must be reversed and a new trial granted for reasons hereinafter stated, we do not comment upon the evidence directed to the respective contentions of the parties, further than to say that in the opinion of Justices HALL, ARRINGTON, ETHRIDGE, and the writer of this opinion, the evidence was sufficient to create an issue for the jury on the question of negligence vel non of the appellants, whereas Chief Justice McGEHEE, and Justices ROBERDS, ALEXANDER, and KYLE are of the contrary opinion.

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 control, it would likely proceed into the west lane of the highway, and that Bridges negligently failed to stop his truck or slow down, and that such failure caused or contributed to the collision, then they should return a verdict for the plaintiffs. The use of the words 'immediately prior to the collision' was calculated to, and no doubt did, lead the jury to construe this language of the instruction as meaning a collision then imminent or impending. Such would be the construction which a jury of practical men might in all reason be expected to give to the language used, and the important consideration, of course, is how the jury may have construed this language and not how a reviewing court may later construe it. Therefore, under the construction which the jury might reasonably have adopted, it could be assumed as true that Bridges saw that the Trest automobile was out of control immediately prior to the collision and that it would likely proceed into the west lane of the highway, yet it would have been humanly impossible in such an infinitesimal period of time to stop his truck or even slow it down in time to avoid the collision. Nevertheless, the instruction imposed upon him the duty to do that which in all human experience was manifestly impossible. Bridges admitted that he knew the Trest automobile was out of control when it was within 30 or 35 feet from him and that he did not then slow down because there was not time. That there was not then time to slow down is obviously true. Yet the instruction imposed upon Bridges the duty to then slow down and for his failure so to do, imposed liability. The effect of the instruction was to require of Bridges the accomplishment of that which was impossible or suffer liability. Since Ridges admitted that he knew the Trest automobile was out of control immediately prior to the collision and that he did not then slow down, the instruction was equivalent to a peremptory.

It is argued, however, that the error of this instruction was cured by the following instruction granted to the appellant: 'The court instructs the jury for defendants, Film Transit and O. G. Bridges, that if you delieve 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 paralled 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 the should have known that the Trest automobile was out of control immediately prior to the collision, his failure to take reasonable precaution to stop or slacken his speed imposed liability. The jury might very well have believed that Bridges did not realize that the Trest automobile was out of control until it was within 30 or 35 feet from him, which was obviously immediately prior to the collision, yet they were told in instruction No. 6 that if he should have known it, he was held to accountability. The two instructions are, therefore, irreconcilable, and not only afforded no proper guide to the jury in arriving at a verdict, but necessarily served to confuse and confound the...