Hammond v. Morris

• Decision Date: 17 March 1930
• Docket Number: 28510
• Citation: 126 So. 906,156 Miss. 802
• Court: Mississippi Supreme Court
• Parties: HAMMOND v. MORRIS

126 So. 906

156 Miss. 802

HAMMOND v. MORRIS

No. 28510

Supreme Court of Mississippi

March 17, 1930

Division B

Suggestion of Error Overruled April 14, 1930.

APPEAL from circuit court of Marion county HON. J. Q. LANGSTON Judge.

Action by E. V. Hammond against Van M. Morris and another, From an adverse judgment, plaintiff appeals. Affirmed.

Judgment affirmed.

Henry Mounger and T. B. Davis, both of Columbia, for appellant.

The word "wanton" is much wider and far-reaching than mere negligence.

Black's Law Dictionary (2 Ed.), p. 1217.

Although a declaration charge that an act was wantonly done it need only to be proven that it was negligently done in order to recover.

The jury was entitled to have the law of the case as given by the court, written out in full in the instructions. To require the jury to resort to the pleadings in the case to patch up and piece out the instructions is calculated to confuse and mislead them.

So. Ry. Co. v. Ganong, 99 Miss. 540; Y. & M. V. R. R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90.

The general principles which require one to act in such manner as to avoid injury to himself or others and to take those steps to avoid accident, which would be taken by a reasonably prudent person under like circumstances, are not enforced in all their rigor as to situations of sudden danger.

Legan & McClure Lbr. Co. v. Fairchild, 124 So. 336; 2 R. C. L. 1196, sec. 31.

An instruction should not call the jury's special attention to an isolated fact.

14 R. C. L., p. 780, par. 48; 38 Cyc., p. 1674; Jacksonville Electric Light Co. v. Adams, 39 So. 133; Hooks v. Mills, 101 Miss. 92; Levy v. Holberg, 71 Miss. 66; N. O. & G. N. R. R. Co. v. Statham, 42 Miss. 608.

It is a general rule that an instruction which assumes as true the existence or nonexistence of any material fact in issue, in respect to which there is some evidence or want of evidence in conflict therewith, should not be given.

14 R. C. L., p. 738, sec. 12; Jackson Light & Traction Co. v. Taylor, 112 Miss. 60; Godfrey v. Meridian Light & Ry. Co., 101 Miss. 565; 38 Cyc., p. 1657; American Express Co. v. Jennings, 86 Miss. 329; 38 Cyc., p. 1661, F Note 66; Edward Hines Lbr. Co. v. Dickinson, 125 So. 93.

Rawls & Hathorn, of Columbia, for appellee.

Under Code 1906, section 793, prohibiting the giving of instructions not requested in writing, defendant could not predicate error on the failure of the court to give instructions counter to those given at plaintiff's request, where no request was made for such counter instructions.

Y. & M. V. R. R. Co. v. Messina, 109 Miss. 143.

An instruction to the jury that, unless you believe from a preponderance of the evidence and to the satisfaction of the jury that the plaintiff has established every material allegation in the declaration, you must find for the defendant is proper.

Brister v. Dunaway, 115 So. 38.

Where there is evidence tending to establish a material fact, it is error to refuse instructions as to its effect, although the weight of evidence may tend to disprove it.

Hursey v. Hasson, 45 Miss. 133; Nichols v. State, 46 Miss. 284; Levy v. Gray, 56 Miss. 318; Newman Lbr. Co. v. Dantzler, 107 Miss. 31; Telegraph Co. v. Cosnahan, 105 Miss. 617; Bonelli et al. v. Branciere, 127 Miss. 556; Miss. Central R. R. Co. v. Lott, 118 Miss. 816; Venly v. Samuels, 142 Miss. 476; 14 R. C. L., p. 740; Florida R. R. Co. v. Foxworth, 79 A. S. R. 157, 25 So. 338.

All the instructions, when taken, considered and construed together, fairly state the law. The case will not be reversed, even though there may be slight inaccuracies in particular instructions.

A. & V. R. R. v. Fountain, 145 Miss. 526; Haynes Walker Lbr. Co. v. Hawkins, 141 Miss. 64; Crawford v. Maryland Casualty Co., 115 So. 586.

Argued orally by T. B. Davis and Henry Mounger, for appellant, and by C. V. Hathorn, for appellee.

OPINION

Ethridge, P. J.

The appellant, Hammond, sued the appellee, Morris, and the Gulf Refining Company for personal injuries caused by the wreck of the car Hammond was driving. The declaration alleged that Hammond was approaching the delivery truck of Morris on a public highway running north from Columbia to Jefferson Davis county, the parties traveling south. It was alleged that on approaching the truck, Hammond sounded the horn of his car three or four times; that the driver of the truck pulled to the right of the center of the road; that as the car was passing the truck, and when the radiator reached about the cabin of the truck, the truck turned suddenly to the left in the direction of the car; that in order to prevent a collision, it was necessary for the plaintiff, Hammond, to turn his car sharply to the left, and in doing so the left wheels, both fore and rear, went into the ditch on the side of the road on the east; that the car ran some little distance in this position, but approaching a culvert it was necessary to turn back into the road, the car at that time being past the truck, and that in turning, the hind wheels of the car did not come into the road, but threw the car across the road, and it ran into the ditch on the opposite side, or west side, wrecking the car and injuring the plaintiff by severely cutting his arm, neck, and shoulder, from which he suffered pain, was treated in the hospital, and was permanently injured.

The declaration also alleged that the negligence of the driver of the truck was wanton. The proof of the plaintiff failed to connect the Gulf Refining Company with the operation of the truck, it being shown that Morris owned the truck and hired the driver, and was engaged in business on his own account on a commission basis with the Gulf Refining Company. At the end of the plaintiff's testimony, a motion was sustained to strike out the evidence relating to the Gulf Refining Company, and granting a peremptory instruction, which action by the plaintiff is conceded to be correct. A motion to strike out as to Morris and a directed verdict was overruled, and the case went to the jury, and the jury found for the defendant.

There were two other persons riding in the car with the plaintiff, and these and Hammond testified that as they were approaching the truck, being driven by one Pierce, at a rate of speed of about thirty miles per hour, they sounded the horn three or four times, and that the truck driver pulled to the right of the center of the road, and they speeded up to pass the truck, and just as the front of their car was opposite the cabin of the truck in which the driver was seated, he turned suddenly to the left. In order to prevent a collision, the driver of the car had to turn to the left, and in doing so the car went into the edge of the ditch; that the left wheels, both front and rear, of the car went on the side of the ditch, but not to the bottom of it; that they ran along this way some forty or fifty yards and were approaching a culvert and pulled the car to the right, but the rear wheel did not come out of the ditch and threw the car across the road, and it ran into the bank on the right-hand, wrecking the car and injuring Mr. Hammond.

The driver of the truck, and another gentleman riding with him, testified that the truck was at all times on the right-hand of the center of the road; that it never turned into the left of the center; and that the plaintiff and the car in which he was riding approached at a high rate of speed, estimated at fifty miles an hour, and he did not see them until they were just even with the truck. They testified that they did not hear the horn sound; that the truck was traveling at a rate of about twenty miles per hour; and that as the car, occupied by the plaintiff, passed them, it turned into the road and ran across the road into the bank on the right-hand side, and the car was wrecked.

There were several witnesses for the defendant who came to the scene of the wreck immediately, or within a few minutes thereafter, some of them came while the truck and the wrecked car were still present, and knowing of the injury, and thinking there would be a suit with reference to it, they made observations of the tracks made by the truck and also by the car. They testified that the track of the truck was at all places along the road near the scene of the injury upon the right-hand of the center, and that there was no sudden turn of the truck from the right-hand side of the road to the left-hand side. Some of these witnesses testified that they observed the track of the car, and could tell by the way the mud was thrown by this car, and by the track, that it was going at a very high rate of speed.

There was testimony for the plaintiff by another witness who testified that she saw the car approaching the truck and heard the sound of the horn blown by the car, and that she was a greater distance from the car than was the truck. The road where the wreck occurred was twenty-four feet wide between the ditch banks and was practically straight, but to the north some distance, there was a curve in the road.

The assignments of error are based upon instructions given for the defendant. The principal instruction complained of, the one to which most...