Graves v. Hamilton

Decision Date31 October 1938
Docket Number33309
CourtMississippi Supreme Court
PartiesGRAVES et al. v. HAMILTON et al

(Division A.)

1 HIGHWAYS.

A road contractor engaged in constructing a road had right to place an effective barricade at the point where the usable portion of the road ended and the unusable portion began.

2 HIGHWAYS.

The right of a road contractor to place a barricade at the point where the usable portion of a road ends and the unusable portion begins is subject to the qualification that the barricade shall be such that it can be readily or easily seen by those approaching it on the usable portion of the road and for a sufficient distance to safely allow the traveler to stop before arriving at the barricade.

3 AUTOMOBILES.

In action against highway contractor for death of motorist who in clear daylight crashed into steel trailer barricade across highway under construction, where evidence conclusively showed that trailer barricade could be readily or easily seen by an approaching traveler who was in the exercise of vigilant caution and keeping a constant lookout on road under construction and circumstances were such that a traveler should have known that road was under construction, finding that circumstances were not sufficient to charge motorist with knowledge that road was under construction was not warranted.

4 TRIAL.

Excerpts from opinions should not be used in the drawing of instructions, since language which is understood by members of the legal profession in the connection with which it is used may not be understood by the laymen on the jury.

HON. S F. DAVIS, Judge.

APPEAL from the circuit court of Humphreys county, HON. S. F. DAVIS, Judge.

Action by Mrs. J. B. Hamilton and others against R. F. Graves and others. From an adverse judgment, named, defendant appeals. Reversed and remanded.

Reversed and remanded.

Watkins & Eager, of Jackson, and W. D. Womack, of Belzoni, for appellant.

The lower court should have directed verdicts for the appellants in accordance with appellants' separate requests.

Graves v. Johnson, 179 Miss. 465, 176 So. 256; American Car & Foundry Co. v. Kindermann, 216 F. 499; Brewer v. Browning, 115 Miss. 358, 76 So. 267; Elrich v. Schwaverer, 230 N.W. 902; Hickey v. Missouri Pacific R. R. Corp., 8 F.2d 128; Masonite Corp. v. Dennis, 175 Miss. 855, 168 So. 613; Missouri, K. & T. Ry. Co. v. Collier, 157 F. 347, 209 U.S. 545, 2S S.Ct. 571, 52 L.Ed. 920; Newton v. Homochitto Lbr. Co., 165 Miss. 20, 138 So. 564; Pennsylvania R. R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Teche Lines, Inc. v. Bounds, 179 So. 747; U.S. v. Kerr, 61 F.2d 800; Y. & M. V. R. R. Co. v. Lamensdorf, 178 So. 80.

The undisputed fact that hundreds of automobiles had constantly used the road without accident conclusively demonstrates the easy visibility of the trailer-barricade.

Millstead v. City of New Orleans, 146 So. 493.

Section 5579 of the Mississippi 1930 Code prohibits the operation of a motor vehicle by any person in a state of intoxication, or "in other respects incapable of properly and safely operating said motor vehicle."

Terry v. State, 100 So. 574.

The lower court erred in refusing appellants' separate requested instructions that J. B. Hamilton and Pete Johnson were each guilty of negligence proximately contributing to the fatal accident.

Graves v. Johnson, 179 Miss. 465, 176 So. 256.

The learned trial court erred in giving the instruction requested by appellees shown at page 488 of the record. In drawing this instruction appellees' counsel have adopted the legal phraseology of Your Honors' opinion and overlooked the fact that the instruction itself to the jury must be based on a finding of facts.

The learned trial court erred in overruling appellants' objections to the testimony of certain of appellees' witnesses who were permitted to testify that the I beams of the trailer blended with the concrete, or that the color of the concrete and the color of the I beams were similar, such evidence being incompetent and prejudicial as constituting the opinions of the witnesses and matters solely within the province of the jury.

F. W. Woolworth Co. v. Haynie, 176 Miss. 703, 170 So. 150.

The verdict of the jury and the judgment rendered thereon is contrary to the great overwhelming weight of the evidence.

Columbus & Greenville Ry. Co. v. Buford, 156 Miss. 832, 116 So. 817; M. & O. R. R. Co. v. Bennett, 127 Miss. 413, 90 So. 113.

The amount of the verdict and judgment rendered thereon is so grossly excessive as to evince passion and prejudice on the part of the jury.

Murphy & Wadlington and V. B. Montgomery, all of Belzoni, for appellees.

The evidence of appellees' witnesses is consistent with and corroborated by and not contrary to admitted physical facts, natural laws or common knowledge. The modern tendency is to regard it as more important to get to the truth of the matter than to quibble over distinctions which are, in many cases, impracticable, and a witness is permitted to state a fact known to or observed by him even though his statement involves a certain element of inference.

Johnson v. Graves, 179 Miss. 465, 176 So. 256; Miss. Cent. R. Co. v. Smith, 168 So. 604, 159 So. 562, 154 So. 533.

In the present consideration of this case, we are fortified not only by "the law of the case" as announced in the opinion of Mr. Justice Griffith, in the Johnson case, supra, but also with the "law of precedent, " it having been followed by Mr. Justice McGowen on the former appeal of this case.

Brewer v. Browning, 115 Miss. 358, 76 So. 267; Johnson v. Success Brick Co., 61 So. 178, 104 Miss. 217.

As stated by the Supreme Court of the United States in Roberts v. Cooper, 20 How. 467, 15 L.Ed. 969, "there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticism on their opinions, or speculate on chances from changes in its members.

McDonald v. Green, 9 S. & M. 138; Green v. McDonald, 13 S. & M. 445; Smith v. Elder, 14 S. & M. 100; Bridgeforth v. Gray, 39 Miss. 136; Swan v. Smith, 58 Miss. 875; Still & Still v. Anderson, 63 Miss. 545; Nutt v. Knut, 84 Miss. 465, 36 So. 689; N.Y. Life Ins. Co. v. McIntosh, 46 So. 401; Johnson v. Success Brick & Machine Co., 104 Miss. 217, 61 So. 178, 62 So. 4; Supreme Lodge, K. P. v. Hines, 109 Miss. 500, 68 So. 485; Cochran v. Latimer, 111 Miss. 192, 71 So. 316; Village of Zama v. Ayers Separate School District, 82 So. 313, 120 Miss. 444.

The court has on the former appeals held in this case that, in so far as the negligence of the appellants is concerned, the court below did not err in declining to direct a verdict for them; that there was sufficient evidence of their negligence to carry the case to the jury.

It is our contention now that the opinion in the Johnson case is the rule and guide for this court (as it was for the trial court) in determining whether or not we have succeeded in presenting ii in the lower court, strictly and precisely according to that rule and guide.

G. M. & N. R. R. Co. v. Hardy, 117 So. 536.

The refusal to give instructions announcing the law as declared by the Supreme Court on former appeal is error.

Moody v. Chas. Galigher & Son, 1 Miss. Dec. 463.

If we have succeeded in establishing the primary fact that the eye beam of the trailer extending across the road was hard to see, then defendants were guilty of negligence and are consequently liable, and this is true regardless of whether the occupants of the car were likewise negligent or careless, even though they may have been grossly negligent.

Majers v. Okolona-Houston R. Co., 165 So. 416; Y. & M. V. v. Williams, 74 So. 835; G. & S. I. R. Co. v. Saucier, 104 So. 180; M. & O. R. Co. v. Johnson, 141 So. 581; Y. & M. V. R. Co. v. Pittman, 153 So. 382; Sec. 511, Code of 1930; C. & G. R. R. Co. v. Lee, 115 So. 782; C. & G. R. R. Co. v. Buford, 116 So. 817.

Division "B" of this court has twice decided that appellants were not entitled to a directed verdict.

Graves v. Johnson, 179 Miss. 465, 176 So. 256.

Division "A" of this court has also decided this same proposition in the same way.

Graves v. Hamilton, 177 So. 360.

We submit, therefore, that the proposition of appellants' right to a directed verdict has been thrice considered, and thrice decided by this court adversely to these appellants. We now feel that we would not show proper respect for this court and proper regard for the general stability of courts and their decisions if we further argued this proposition.

Johnson and Hamilton were not under the influence of intoxicating liquors.

The lower court properly refused appellants requested instructions that Hamilton and Johnson were each guilty of negligence proximately contributing to the fatal accident.

G. & M. N. R. Co. v. Hardy, 117 So. 536.

The first instruction (page 488 of the record) is the law of the open road as laid down by Mr. Justice Griffith in the Johnson case and applied to this very accident. The instruction does expressly require a finding of facts by the jury.

The instruction is wholly based upon, and is in complete harmony with, sections or paragraphs (5) and (10) of Graves v. Johnson, 176 So., pages 259 and 260, respectively.

The instruction on page 487 of the record, being page 82 of appellants' brief, simply tells the jury, under all the facts and circumstances of the case, the care which the law required the men to exercise was "cautious vigilance;" and, if exercising such care, they still could not plainly and easily see the trailer, then plaintiffs were entitled to a verdict. The words, "under the law" were used for emphasis of the necessary requirement and strengthened the...

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