Byrd v. F-S Prestress, Inc., F-S

• Decision Date: 13 February 1985
• Docket Number: F-S,No. 54581,54581
• Citation: 464 So.2d 63
• Parties: Howard McCoy BYRD v.PRESTRESS, INC. and Steve Smith, Jr.
• Court: Mississippi Supreme Court

Page 63

464 So.2d 63

Howard McCoy BYRD v. F-S PRESTRESS, INC. and Steve Smith, Jr.

No. 54581.

Supreme Court of Mississippi.

Feb. 13, 1985.

John M. Deakle, Hattiesburg, John Satcher, Heidelberg, for appellant.

Lawrence C. Gunn, Jr., Aultman, Tyner, Weathers & Gunn, Hattiesburg, for appellees.

Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This appeal follows a jury verdict in favor of F-S Prestress, Inc. and its employee, Steve Smith, Jr., finding no liability to Howard McCoy Byrd for injuries and damages resulting from a February 29, 1980 collision between Byrd's tractor trailer and a Prestress tractor trailer driven by Smith.

On appeal, Byrd contends that the trial court erred in: (1) in granting Jury Instruction D-6 (concerning distances to be observed by motor trucks following one another); (2) in granting Jury Instruction D-5 (concerning the permissibility of proceeding at a reduced speed); (3) in refusing to grant Jury Instruction P-18 (concerning Byrd's theory as to how turns onto a through highway are to be executed); (4) in striking part of the testimony of Byrd's accidentologist; and (5) in granting Jury Instruction D-10 (stating that disfigurement is not a compensable injury).

For the reasons set forth below, we affirm.

II.

A.

The accident which has given rise to this litigation occurred at approximately 7:00 a.m. on February 29, 1980 in the south-bound lanes of U.S. 49 approximately three miles north of Hattiesburg, Mississippi. The parties stipulated that the point of impact was 375 feet south of where Pep's Point Road intersects that highway.

Smith, driving a Prestress tractor trailer, emerged from Pep's Point Road on the east side of U.S. 49 and turned south onto U.S. 49. Executing this turn involved: (1) stopping where Pep's Point Road first intersects U.S. 49; (2) crossing the northbound two lanes of U.S. 49 so as to reach the center median area of U.S. 49; (3) pausing in the center median area; and (4) turning left into the leftmost (easternmost) of the two southbound lanes of U.S. 49.

The parties have agreed that 24 seconds after Smith had executed this turn and had proceeded 375 feet down U.S. 49, the front driver's side of Byrd's tractor struck the passenger-side rear end of Smith's trailer. Byrd's tractor trailer then jackknifed and came around in front of Smith's truck eventually coming to a stop against a bridge abutment that is some 300 feet past the point of the collision.

Byrd suffered facial lacerations and other head injuries. Byrd's truck was substantially damaged. Smith suffered no injury, and his trailer was only slightly damaged.

Approximately eight tenths of a mile north of the accident site on U.S. 49 is the crest of a hill. From this hill crest down to the accident site the highway is straight and clear. Once reaching the hill crest Byrd could see Smith and be seen by Smith. Byrd came over the crest of the hill in the righthand lane following a group of other cars and trucks.

Shortly after reaching the crest of the hill, Byrd pulled into the lefthand lane and began passing some of the cars and trucks. He remained in the lefthand lane until the accident and was unable to reenter the righthand lane because there were other vehicles in that lane occupying it. At the time of the accident Smith's truck was traveling at reduced speed--perhaps in the neighborhood of 20 to 30 mph--because that is as much acceleration as Smith had been able to obtain after having paused in the center median.

B.

Howard McCoy Byrd commenced this civil action on May 13, 1980, when he filed his declaration in the Circuit Court of Forrest County, Mississippi. Named as Defendants were F-S Prestress, Inc., a corporation, and Steve Smith, Jr., individually. The declaration charged Smith with negligence in various particulars. Prestress was sued as the employer of Smith under a theory of respondeat superior. Indeed, it was uncontroverted at trial that Smith was employed by Prestress and was acting within the course and scope of his employment when the accident occurred.

After the usual course of pretrial proceedings, this case was called for trial on its merits on May 5, 1982. Trial resulted in a jury verdict for both defendants.

It is fairly apparent from reviewing the record in this case that the reason the jury did not find Smith and Prestress liable is because the conclusion is nearly inescapable that, at the time and on the occasion in question, Byrd was not properly attentive and was probably speeding. From a combination of direct observation testimony and mathematical time and distance calculations, it appears that Byrd was at least 1,000 feet (perhaps nearly 2,000 feet) north of Smith when Smith pulled out onto Highway 49. Byrd, claimed to be going 55 miles per hour while he was passing other cars and trucks whose drivers testified that they were going 55 miles per hour. By stipulation, Byrd had 24 seconds after Smith turned onto the highway to slow down so as to avoid a collision. The verdict suggests a finding by the jury that, if Byrd had been driving reasonably carefully, the accident should have been avoided.

In any event, on May 14, 1982, final judgment was entered in favor of Prestress and Smith and against Byrd. Plaintiff Byrd timely filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. These alternative motions were overruled by order entered by the circuit court on November 10, 1982.

Plaintiff Byrd has now perfected his appeal to this Court where the matter is ripe for review.

III.

A. Preliminary Observations

The jury in this case was essentially asked to determine: whether Smith was at fault for the accident because he turned onto the southbound lanes of U.S. 49 when oncoming traffic was too near, or whether Byrd was responsible for the accident because, although having had adequate notice of Smith's presence on the road, he failed to use reasonable caution and slow down so as to avoid the collision.

The core issue of fact at trial may be simply put: when Smith began his entry onto the southbound lanes of U.S. 49, was Byrd under the totality of the circumstances so close as to constitute an immediate hazard of collision. If so, Byrd had the right-of-way and Smith was negligent. If not, Smith was entitled to proceed as he did and Byrd was negligent. This core issue was fairly framed for the jury via Instructions P-9 and D-3. No complaint is made here of either of those instructions.

The jury found in Smith's favor--there was an adequate distance between Byrd and Smith when Smith turned onto Highway 49. Given that 24 seconds elapsed between the moment when Smith turned onto Highway 49 and the moment of impact (hence Smith and Byrd were at least approximately one-fifth of a mile apart when Smith turned), the jury's verdict is most reasonable, and it is fair to regard that this verdict is based more upon a jury's commonsense understanding of highway behavior then it is upon any technical details or legal niceties of the instructions which the jury received. In any event, this reading of the verdict is unassailed here and is, we suggest, legally unassailable. Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 656-57 (Miss.1975).

Faced with this reasonable and commonsense verdict, Byrd is forced on this appeal to resort to complaining of alleged errors in jury instruction concerning relatively insignificant side issues. When he does this he runs headlong in the several well established and wholly reasonable principles applicable in cases where errors in jury instructions are asserted.

In this context, we do not isolate the individual instruction attacked, but rather we read all instructions as a whole when determining whether a jury has been correctly instructed. Jackson v. Griffin, 390 So.2d 287, 290 (Miss.1980). Defects in specific instructions do not require reversal where all instructions taken as a whole fairly announce the applicable primary rules of law. Allen v. Blanks, 384 So.2d 63, 65 (Miss.1980). Where, as here, it may fairly be charged that one or more instructions may have been confusingly worded, this Court should not reverse if other instructions clear up the confusing points. Young v. Cameron, 203 So.2d 315, 316-317 (Miss.1967). These restrictions on our scope of review well in mind, we turn to Byrd's specific assignments of error.

B. Making A Left Turn In Mississippi

Byrd complains that refusal of Instruction No. P-18 was error. P-18 would have advised the jury that, because Smith turned into the lefthand-easternmost lane of the southbound two lanes of Highway 49, he violated Miss.Code Ann. Sec. 63-3-703(b) (1972) and is thus negligent as a matter of law. ¹ The statute actually reads:

(b) The approach for a left turn shall be made in that proportion of the right half of the roadway nearest the center line thereof and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered.

Byrd contends this statute means that a lefthand turn made across a four lane highway is to be executed so that the party making the turn drives directly to the righthand-westernmost lane as quickly as possible. This would have Smith required to cross a lane of possibly oncoming traffic. Visualizing Byrd's theory reveals its impracticability.

Our highway safety statutes were enacted in an era when there were few, if any, four lane highways. See Stong v. Freeman Truck Line, 456 So.2d 698, 704-06 (Miss.1984). We will interpret this statute drafted in an era of two lane highways to accommodate the practical realities of modern four lane highways such as U.S. 49.

The "center line of the roadway being entered" refers in a two lane highway to the dividing line and in a four lane highway to the median area. Byrd's interpretation of the statute is in total contradiction to the proper turning procedure...