Gardner v. Comer

• Citation: 151 Miss. 443,118 So. 300
• Decision Date: 01 October 1928
• Docket Number: 27278
• Court: United States State Supreme Court of Mississippi
• Parties: GARDNER et al. v. COMER. [*]

118 So. 300

151 Miss. 443

GARDNER et al. v. COMER. ^[*]

No. 27278

Supreme Court of Mississippi

October 1, 1928

Division A

1 AUTOMOBILES. Instruction authorizing recovery for damages in automobile collision, in case defendant undertook to pass plaintiff at more than eight miles per hour, held erroneous (Hemingway's Code 1927, section 6681).

In suit for injuries and damage resulting In collision between automobiles, instruction authorizing recovery in case defendants undertook to pass plaintiff on public highway at a greater speed than eight miles an hour held erroneous, since Hemingway's Code 1927, section 6681, does not limit right of motor vehicles to eight miles per hour except when passing person driving horse or domestic animals or person walking in roadway or passing public school or place of public worship on Sabbath day.

2. APPEAL AND ERROR. Defendant's failure to request instruction relating to diminishing of damages cannot complain of jury's failure to so diminish damages.

Defendants in action for injuries and damage resulting in automobile collision, having failed to request instruction as to diminishing damages in proportion to negligence attributable to plaintiff, cannot on appeal complain of failure of jury to so diminish damages awarded.

HON. C P. LONG, Judge.

APPEAL from circuit court of Prentiss county, HON. C. P. LONG Judge.

Suit by Henry Comer against Pryor Gardner and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Judgment reversed, and cause remanded.

Friday & Windham, for appellants.

J. A. Cunningham, for appellee.

OPINION

COOK, J.

The appellee, Henry Comer, instituted suit in the circuit court of Prentiss county against the appellants, seeking to recover damages for alleged personal injuries, and damage to his automobile resulting from a collision between the automobile of the appellants and appellee on a public highway, and, from a verdict of two hundred sixty-three dollars and seventy-five cents the amount of the alleged damage to appellee's automobile, this appeal was prosecuted.

The testimony is in sharp conflict. The appellee testified that he was traveling west at a rate of speed not exceeding eight miles per hour; that just as he was passing off a bridge at a point where the roadway was narrow, and while his car was as far to the right of the center of the road as was possible to place it, the appellants while traveling east at a rate of speed of about forty-five miles per hour, undertook to pass him, and that in so doing the hub of the left rear wheel of appellants' car struck the hub of the left front wheel of appellee's car, causing his car to swerve to the left of the road and run into a telephone pole south of the highway, thereby seriously injuring the appellee and damaging his automobile.

The appellants testified that the collision occurred at a point more than twenty-five feet east of the bridge, at a place where the roadbed was eighteen or twenty feet wide; that appellants were driving to the right of the center of the road; that appellee was swerving from one side of the road to the other, and ran into appellants' car; that both the appellants and the appellee were traveling, at about twenty miles per hour; and that, if appellee had had his car under proper control, he could have passed without interference.

The appellants assign as error an instruction granted to...