Franks v. Armstrong
| Decision Date | 04 March 1929 |
| Docket Number | 27602 |
| Citation | 152 Miss. 719,120 So. 829 |
| Court | Mississippi Supreme Court |
| Parties | FRANKS v. ARMSTRONG. [*] |
AUTOMOBILES. Instruction, precluding recovery for injury to passenger in wagon in collision with automobile in case passenger jumped from wagon, held erroneous under evidence; jumping from vehicle at time of impending collision is not negligence per se.
It is error to give an instruction, in a personal injury case (where there was a collision between an automobile and a wagon, in which the plaintiff was injured), that if the jury believe from the evidence that the plaintiff jumped from the wagon, or unless the plaintiff shows by a preponderance of the evidence that she did not jump out of the wagon, they should return a verdict for the defendant. Such an instruction is erroneous in this case because not supported by testimony; and also for the reason that to jump from a vehicle in such case is not negligence per se, but must be judged by the facts in each particular case in the light of what was reasonable under the circumstances as they appeared in the evidence.
APPEAL from circuit court of Lee county, HON. C. P. LONG, Judge.
Suit by Mrs. Calvin Franks against Will Armstrong. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
Judgment reversed and cause remanded.
I. L Sheffield and Bolton & Monoghan, for appellant.
We respectfully submit that defendant's instruction No. 2 is such patent error that it seems clear to us that the case should be reversed. It charged the jury that if they believed that "the plaintiff jumped out of the wagon and was thereby injured, or unless the plaintiff shows by a preponderance of the evidence that she did not jump out of the wagon you will return a verdict for the defendant." This instruction stands out independently and alone and directs to return a verdict for the defendant upon the conditions therein stated, regardless of what they might have believed about any other instruction. It submits a false issue to the jury and is misleading. There is no evidence whatever in the record raising the question that plaintiff jumped out of the wagon and was thereby hurt. Nobody says she did, but yet the court charged the jury that if they believed she did jump out, they would find for the defendant; and not content with that, it wont further and told them that unless the plaintiff had proved by a preponderance of the evidence that she did not jump out of the wagon, they would return a verdict for the defendant. It is difficult to conceive of an instruction more unjust to the plaintiff. It first directed the jury to return a verdict for the defendant if they believed that as to which no evidence was offered in support of, and then in the alternative required plaintiff to disprove any negligence on her part. The plaintiff has never been under obligation at law to disprove negligence until the defendant had offered some proof of it, and under our comparative negligence statute, the plaintiff is never in any case required to disprove negligence as a condition of recovery.
If the defendant's negligence was the proximate cause of the collision and the mules running away, it made no difference whether plaintiff was thrown out or jumped out to save herself and was injured. Burcham v. Robinson, 112 Miss. 527, 74 So. 417.
Blair & Anderson, for appellee.
In Burcham v. Robinson, 113 Miss. 527, 74 So. 417, the circuit court gave a peremptory instruction for the defendant and the supreme court held that the question or case should have been submitted to the jury. In the case at bar, the case was submitted to the jury under plaintiff's instructions and defendant's instruction and the jury found for the defendant. We respectfully submit that this case should be affirmed.
Appellant was plaintiff in the court below and brought suit against the appellee for personal injuries occasioned by a collision between an automobile driven by the defendant and a wagon drawn by mules in which the plaintiff was riding as a guest and being driven by a man named Will Nanney.
It appears from the record that Will Nanney, his wife appellant, and some others were on their way to Friendship Church in Itawamba county at the...
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