Continental Southern Lines, Inc. v. Lum, 43754

• Decision Date: 24 January 1966
• Docket Number: No. 43754,43754
• Citation: 254 Miss. 655,182 So.2d 228
• Parties: CONTINENTAL SOUTHERN LINES, INC. v. Clinton E. LUM et ux.
• Court: Mississippi Supreme Court

Page 228

182 So.2d 228

254 Miss. 655

CONTINENTAL SOUTHERN LINES, INC. v. Clinton E. LUM et ux.

No. 43754.

Supreme Court of Mississippi.

Jan. 24, 1966.

Butler, Snow, O'Mara, Stevens & Cannada, Jackson, Dent, Ward, Martin & Terry, Vicksburg, for appellant.

Prewitt, Bullard & Braddock, Vicksburg, Wells & Tipton, Natchez, for appellees.

ROGERS, Justice.

Clinton E. Lum and his wife, Kathleen Lum, brought separate suits against the Continental Southern Lines, Inc., for personal injuries, and the two suits were consolidated and tried jointly, resulting in a verdict in favor of Clinton E. Lum for the sum of $51,000, and a verdict in favor of Mrs. Kathleen Lum in the sum of $8,500. Continental Southern Lines, Inc., has appealed from this judgment. Mrs. Kathleen Lum has cross-appealed from the judgment rendered in her favor.

These suits arose out of an automobile accident which occurred on U. S. Highway 61 about four miles south of Port Gibson, Mississippi, on August 26, 1962, at or about 8:30 P.M.

Just prior to the accident, Clinton E. Lum was driving his new 1962 Chevrolet pickup truck following appellant's bus at a distance of 100 to 200 feet, and Mrs. Lum was riding as a passenger in the truck with her husband. The bus was driven by George W. Keys. It had been raining. The night was dark. Mr. and Mrs. Lum observed that the bus had no lights on the back except clearance lights at the top of the bus. They saw no signal lights indicating a stop. Nevertheless, the bus came to a stop partially on the paved portion of the highway, for the purpose of permitting a passenger to disembark. The appellees claim the bus stopped without warning, blocking the entire northbound traffic lane at a time when they had reached a point within sixty feet of the bus. They claim that they were traveling down hill at a rate of forty to forty-five miles an hour, and as they started out of the valley up the next hill, the bus stopped, so that when they became aware that the bus had stopped, Mr. Lum immediately put on his brakes so as to prevent striking the bus. When the brakes took effect, the truck skidded so that the front of the truck protruded about three feet into the south traffic lane, striking a southbound Chevrolet automobile driven by Lamar Chisolm. Appellant insists that the bus was stopped in a normal manner at the widest available place on the highway for the purpose of permitting passengers to disembark, and that all of the lights on the back of the bus were illuminated--'lit up like a Christmas tree'--that the brake and signal lights were in good order and in operation. The bus driver observed from his rear view mirror that an accident had occurred but thought it was a 'sideswipe' and drove away without further investigation.

Both appellees received serious personal injuries which they claim were caused by the negligent manner in which the bus was parked on the highway without reasonable warning of the danger to them. On the other hand, appellant claims that the accident was caused by the negligence of Clinton E. Lum in following the bus too closely, or that Mr. Lum was in fact attempting to pass the bus going up hill and ran into a southbound automobile; that the driver of the bus was in no way involved in the accident. The jury decided the issue in favor of appellees. Appellant, however, insists that the verdict was obtained as a result of certain erroneous instructions to the jury, as set out in the appendix attached hereto.

The appellant, Continental Southern Lines, Inc., contends that the court erred in the following respects: (1) in granting appellees an instruction on the emergency doctrine; (2) in granting appellees an instruction permitting the jury to assess punitive damages under the facts in this case, and at the same time refusing appelant an instruction stating punitive damages should not be allowed; (3) in granting appellees an instruction stating it was the strict duty of appellant not to stop, et cetera, thereby requiring a higher degree of care than ordinary care; and (4) in granting an instruction under Mississippi Code Annotated section 8215(a) (1957) requiring the bus company to leave a twenty-foot unobstructed width on the highway without regard as to whether or not it was practicable.

Mrs. Kathleen Lum, appellee, cross-appealed, and contends that the verdict in her favor was grossly inadequate, to such an extent that it shows that the jury was prompted by bias and prejudice in arriving at the verdict in the light of the unconditional medical proof, with extensive and permanent injuries of the cross-appellant, Kathleen Lum.

We have reached the conclusion that this case must be reversed.

I

The contention of Continental Southern Lines, Inc., is that a sudden emergency instruction was erroneously granted appellees because: First, The instruction did not contain the three basic elements for such instruction and was erroneous as to form. Second, it is contended that Mrs. Lum was guilty of negligence which contributed to the emergency and was therefore not entitled to the sudden emergency instruction.

These objections require a discussion of the history of the sudden emergency doctrine, as shown by opinions of this Court, first, as to the form, and, second, as to when the instruction should be granted.

We have constantly followed the rule that 'if a motorist, by his own negligence, has placed himself in a position of peril, and being called upon in sudden emergency to act mistakes the best course through an error of judgment, he is not thereby relieved' of liability. Ladner v. Merchants Bank & Trust Co., 251 Miss. 804, 171 So.2d 503, 509 (1965).

This Court has repeatedly pointed out that an instruction on the doctrine of sudden emergency in negligence cases should not be given to the jury when it appears to the trial judges--as a matter of law--that the person requesting the instruction, proximately caused, or contributed to the cause of the emergency by his own negligence. Gregory v. Thompson, 248 Miss. 431, 160 So.2d 195 (1964); Hinton v. Delcher Bros. Moving & Storage Co., 250 Miss. 535, 160 So.2d 694, 162 So.2d 651, 167 So.2d 813 (1964); Fink v. East Miss. Elec. Power Ass'n, 234 Miss. 221, 105 So.2d 548 (1958); Meeks v. McBeath, 231 Miss. 504, 95 So.2d 791 (1957); Moak v. Black, 230 Miss. 337, 92 So.2d 845 (1957); Continental Southern Lines, Inc. v. Klaas, 217 Miss. 795, 63 So.2d 211, 65 So.2d 575, 833, 67 So.2d 256 (1953). Cf. Peel v. Gulf Transport Co., 175 So.2d 377 (Miss.1965); Kettle v. Musser's Potato Chips, Inc., 249 Miss. 212, 215, 162 So.2d 243 (1964); Rivers v. Turner, 223 Miss. 673, 78 So.2d 903 (1955); Miss. Cent. R. R. Co. v. Aultman, 173 Miss. 622, 160 So. 737 (1935).

We have held that the 'emergency instruction' should not be granted where the court can hold, as a matter of law, that the person requesting the instruction should have reasonably anticipated, or foreseen the emergency from the surrounding circumstances. Peel v. Gulf Transport Co., 174 So.2d 377 (Miss.1965); Pullin v. Nabors, 240 Miss. 864, 128 So.2d 117 (1961); Jones v. Dixie Greyhound Lines, Inc., 211 Miss. 34, 50 So.2d 902 (1951). One cannot wholly ignore conditions which he knows to exist and be relieved of the responsibility with which he is charged under the law by asserting that the known conditions resulted in a sudden emergency. Ladner v. Merchants Bank & Trust Co., 251 Miss. 804, 171 So.2d 503 (1965); Peel v. Gulf Transport Co., 174 So.2d 377 (Miss.1965).

On the other hand, we have held that an instruction on the doctrine of sudden emergency should be given to the jury when there is an issue of fact from the evidence, as to whether or not a sudden emergency existed, and where the trial judge cannot say, as a matter of law, that the actor did not proximately cause the sudden emergency. In short, when the testimony raises an issue of fact, as to a sudden emergency, it becomes a jury question. Lum v. Jackson Industrial Uniform Serv., Inc., 175 So.2d 501 (Miss.1965) Rushing v. Edwards, 244 Miss. 677, 145 So.2d 695 (1962). See also Vann v. Tankersly, 164 Miss. 748, 145 So. 642 (1933); 38 Am.Jur. Negligence, Sec. 41 (1941).

When it is determined that a sudden emergency instruction should be given to the jury, the form of the instruction must contain the basic elements: (1) The actor, requesting the instruction must have used reasonable care before the emergency arose, the instruction must show that the actor did not negligently cause or contribute to the cause of the emergency; (2) it must define briefly the sudden emergency, stating the facts from which the jury might decide to warrant a finding of sudden emergency; and (3) after the sudden emergency arose, he must have exercised such care as a reasonably prudent (capable driver) would have used under the unusual circumstances. Ladner v. Merchants Bank & Trust Co., 251 Miss. 804, 171 So.2d 503 (1965); Kettle v. Musser's Potato Chips, Inc., 249 Miss. 212, 162 So.2d 243 (1964); Crump v. Brown, 246 Miss. 631, 151 So.2d 822 (1963); Pullin v. Nabors, 240 Miss. 864, 128 So.2d 117 (1961); Moore v. Taggart, 233 Miss. 389, 102 So.2d 333 (1958); Callaway v. Haddad, 226 Miss. 177, 83 So.2d 825 (1955).

A casual reading of the sudden emergency instruction, attached hereto, ¹ will reveal that it does not measure up to the standard required by the foregoing authorities, and particularly is this true since it does not describe the emergency claimed to have suddenly happened to cause the plaintiff to perform the acts caused by the sudden emergency. Moreover, there is no other instruction offered the jury which could have supplied the defect, and where such defect is not supplied in another instruction, the case must be reversed. Crump v. Brown, 246 Miss. 631, 151 So.2d 822 (1963); Jones v. Dixie Greyhound Lines, Inc., 211 Miss. 34, 50 So.2d 902 (1951).

In view of the defendant's testimony that the bus did not stop suddenly, which is not denied by the...