Chadwick v. Bush

• Decision Date: 28 October 1935
• Docket Number: 31811
• Citation: 174 Miss. 75,163 So. 823
• Court: Mississippi Supreme Court
• Parties: CHADWICK v. BUSH et al

163 So. 823

174 Miss. 75

CHADWICK v. BUSH et al

No. 31811

Supreme Court of Mississippi

October 28, 1935

Division B

1 NEGLIGENCE.

Person is required to so guide his conduct as not unreasonably to injure another, and an "actionable wrong" is committed when a responsible person has neglected to use a reasonable degree of care for protection of another person from such injury as under existing circumstances should reasonably have been foreseen as a proximate consequence of that negligence.

2 AUTOMOBILES.

In action for death of motorist as result of nighttime collision with projecting body of truck which motorist was attempting to pass on highway, instruction that if reasonable and prudent man would not operate truck having width of truck in question on public highway at night without light on left forward part of truck body, that defendants were operating truck of such width without displaying such lights, and that such conduct contributed directly and proximately to collision and resulting death, jury should find for plaintiff, held proper.

3 TRIAL.

In action for death of motorist as result of nighttime collision with projecting body of truck which motorist was attempting to pass on highway, instructions that no statute required defendants to maintain lights on side of truck body nor prohibited truck having width of one involved held reversible error, notwithstanding court had correctly charged duty of defendants to maintain lights under common law.

4 TRIAL.

Jurors are judges of facts, and trial judge, throughout a trial, is sole judge of the law in so far as he gives law in written instructions, and consequently judge, in order that jury may not obtain idea that instructions were intended to be advisory only, should not state source from which he obtains law which he gives in charge.

HON. JULIAN P. ALEXANDER, Judge.

APPEAL from the circuit court of Hinds county HON. JULIAN P. ALEXANDER, Judge.

Action by Mrs. W. D. Chadwick, administratrix, against R. R. Bush and others. From an adverse judgment, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Lotterhos & Travis, of Jackson, Hugh B. Gillespie, of Raymond, and A. B. Butts, of University, for appellant.

It is proper to refuse, and error to give, conflicting and contradictory instructions, since a charge containing two distinct propositions conflicting with each other tends so to confuse the jury as to prevent their rendition of an* intelligent verdict.

64 C. J., sec. 600, page 671; Jefferson Standard Life Ins. Co. v. Jefcoats, 143 So. 842; Wilbe Lbr. Co. v. Calhoun, 140 So. 680; Columbus & G. Ry. Co. v. Phillips, 133 So. 123, 160 Miss. 390; Hines v. Lockhart, 105 So. 449; Yazoo & M. V. R. Co. v. Cornelius, 95 So. 90, 131 Miss. 37; Solomon v. City Compress Co., 10 So. 446, 12 So. 339, 69 Miss. 319; Kansas City, etc., R. Co. v. Lilly, 8 So. 644; Herndon v. Henderson, 41 Miss. 584.

The two instructions given the appellees wherein the court told the jury that the defendants had violated no statute of the state of Mississippi in operating a truck of the width in question, and without lights, are argumentative when considered with the instruction given the plaintiff with respect to the same matters defining the common law duties of the defendants.

64 C. J., page 654, sec. 594.

It is erroneous for the court to imply that an unquestionable right is doubtful.

64 C. J. 255 and 586; Mott v. Bank, 78 Wash. 294; Ulmer v. Pistole, 115 Miss. 490; 14 R. C. L., page 773, sec. 42.

When the court gave the plaintiff the instruction laying down the common law principle that it was for the jury to say whether or not the defendants were guilty of negligence in operating a truck over the highways at night with a body eighty-eight inches in width and projecting beyond the cab sixteen inches, and without lights to indicate the danger of the excessively wide body, the court should not then have gone further as it did in the case of the two instructions granted the defendants, and have told the jury, in effect, that the Legislature of the state had not seen fit to condemn by statute the operation of a truck with a body of the width of eighty-eight inches, or one without lights on a body of such width.

The mere fact that an instruction is argumentative in form or character does not justify a reversal of a cause; yet, where the argumentative instructions are of a character calculated to mislead the jury, it is within itself sufficient grounds for the reversal of the judgment.

64 C. J., sec. 594, page 661; 14 R. C. L., sec. 42, page 775 and sec. 48, page 780.

As instructions should not draw the jury's attention to particular facts, it is error to give, and proper to refuse, instructions that unduly emphasize issues, theories, or defenses, whether by repetition or by singling them out and making them unduly prominent, although the instructions may be correct as legal propositions.

64 C. J., page 682, sec. 601; Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617; Hooks v. Mills, 57 So. 545, 101 Miss. 91; Mohead v. Gilmer Grocery Co., 121 So. 143, 153 Miss. 467.

It was error for the trial court to give the defendants the instruction based on the forty miles per hour speed statute governing the operation of automobiles outside of municipalities.

The trial court erred in giving appellees an instruction permitting the jury to find the sole cause of the collision was the action of the deceased in crossing the center line of the highway.

Wells, Wells & Lipscomb, of Jackson, and M. Ney Williams, of Raymond, for appellees.

We cannot see how appellant can possibly contend that the two instructions are argumentative. They are merely plain simple statements that no statute prohibited an eighty-eight inch body on a truck, and no statute required defendants to keep any lights on the body, leaving the jury absolutely free to determine defendants' negligence vel non under the principles of the common law.

Nor do we see how appellant can contend that the instructions are misleading. On the contrary, we think the jury would have been very much confused if these instructions had not been given to clarify the legal principles involved in the case.

Sections 5569, 5574 and 5575, Code of 1930.

The two instructions granted to appellees and complained of by appellant, and the two instructions granted to the appellant, instructions numbers three and four, were to be read and construed together as a whole. If, when so read and construed, they fairly stated the law applicable to the case, then the giving of the said two instructions to appellees, even if, taken by themselves, they might be considered erroneous, could not cause the reversal of this case. That rule is so well settled that it hardly seems necessary to cite authorities in support thereof.

64 C J. 960; Y. & M. V. R. Co. v. Mullen, 131 So. 101, 158 Miss. 774; Waddle v. Sutherland, 126 So. 201, 156 Miss. 540; Carlisle v. City of Laurel, 124 So. 786, 156 Miss. 410; Landrum v. Ellington, 120 So. 444, 152 Miss. 569; Friedman v. Allen, 118 So. 828, 152 Miss. 377; Brister v. Dunaway, 115 So. 36, 149 Miss. 5; Alabama & V. R. Co. v. Fountain, 111 So. 153, 145 Miss. 515, 47 S.Ct. 769, 274 U.S. 759, 71 L.Ed. 1338; Hemming v. Rawlings, 110 So. 118, 144 Miss. 643; Gibson v. A. T. Wineman & Sons, 106 So. 826, 141 Miss. 573; Cumberland...