Hardin v. Jackson Yacht Club, Inc.

• Decision Date: 09 March 1970
• Docket Number: No. 45628,45628
• Citation: 232 So.2d 721
• Parties: J. W. HARDIN, Executor of the Estate of James E. Hardin v. JACKSON YACHT CLUB, INC.
• Court: Mississippi Supreme Court

Page 721

232 So.2d 721

J. W. HARDIN, Executor of the Estate of James E. Hardin v. JACKSON YACHT CLUB, INC.

No. 45628.

Supreme Court of Mississippi.

March 9, 1970.

Watkins, Pyle, Ludlam, Winter & Stennis, Robert H. Weaver, Jackson, for appellant.

Satterfield, Shell, Williams & Buford, Cary E. Bufkin, James P. Cothren, Jackson, for appellee.

SMITH, Justice.

The judgment, from which this appeal has been prosecuted, was entered by the Circuit Court of the First Judicial District of Hinds County pursuant to a jury verdict in a wrongful death action brought by the personal representative of James E. Hardin, deceased, against Maurice Joseph and Jackson Yacht Club. The verdict exonerated defendant-appellee, Jackson Yacht Club from liability, but awarded damages of $89,000 against defendant Joseph.

After giving notice of appeal, Joseph paid or settled the judgment obtained against him. Therefore, there is no appeal from the judgment against Joseph and it has become final.

The present appeal is by Hardin's executor alone and is directed toward the proposition that appellant was entitled to a directed verdict against Jackson Yacht Club on the issue of liability, and that the case should be remanded for a trial upon damages only, or, alternatively, that the verdict for Jackson Yacht Club was against the overwhelming weight of the evidence and a new trial should be granted on all issues. Other matters, assigned as error requiring a new trial, will be mentioned later on.

In order to sustain the first of these two propositions, it would be necessary to demonstrate that the evidence was undisputed that (1) Jackson Yacht Club was guilty of negligence, (2) that such negligence was a proximate cause of Hardin's injury, and (3) reasonable men could reach no other conclusion from it.

On appeal from a judgment based upon a jury verdict, that version of the facts in evidence most favorable to appellee will be adopted by this Court. It was the province of the jury, as trier of facts, to resolve all conflicts, and to draw reasonable inferences from the evidence. In considering the sufficiency of the evidence to support the verdict, all that the evidence proves or reasonably tends to prove, together with all reasonable inferences which may be drawn from it, which support the verdict returned for appellee, will be accepted as having been established. Mathieu v. Beck, 209 So.2d 627 (Miss. 1968) and Peerless Insurance Co. v. Myers, 192 So.2d 437 (Miss. 1966).

The events which led to Hardin's injury may be summarized as follows. At about 5:30 in the afternoon of July 13, 1966, Hardin and Joseph, in Joseph's new 120-horsepower, 18-foot motorboat, left the Natchez Trace Marina and headed out into the Pearl River Valley Water Supply District Reservoir. They took turns at the wheel until they had reached an area known as Three Pronged Lake. After remaining there for some unspecified time, Joseph remarked to Hardin that it was getting dark and suggested that they return. Joseph testified that they proceeded to a point 1,000 yards north northeast of Jackson Yacht Club where they again stopped. After again starting the motor, Joseph's memory lapsed. He had, he said, no recollection whatever of anything that transpired after that moment (the last thing he remembered having been the starting of the motor for the return trip from this point) until he recovered his senses after the collision and found himself standing in the boat with Hardin lying unconscious in the rear seat, the boat having been at that time opposite a riprapped section of the shoreline.

The declaration filed by plaintiff-appellant was based upon the proposition that Hardin's death had resulted proximately from 'the gross negligence of the defendant, Maurice H. Joseph, * * * or the gross negligence of the defendant, Jackson Yacht Club * * * or, in the alternative, the concurrent gross negligence of each of said defendants. * * * ' It was charged that Joseph's negligence had consisted in operating the motorboat, in which Hardin had been a passenger, 'at a high, reckless, careless, dangerous and negligent rate of speed under the circumstances then existing and * * * into a concrete retaining wall of the Jackson Yacht Club. * * * That the motorboat was driven by (Joseph) into the said concrete retaining wall at such a high and excessive speed, * * *' that Hardin had sustained the injuries as the result of which he afterward died.

The Jackson Yacht Club's negligence was charged to have been that it 'caused to be constructed the large retaining wall from the Madison County side of the Pearl River Reservoir out into the waters of the reservoir, which retaining wall was constructed of thick concrete, grey in color, which color blends into the waters of the reservoir in such a way as to make its presence extremely obscure to one traveling in a boat upon the waters of the said reservoir * * * Jackson Yacht Club * * * negligently failed and neglected to have installed upon said concrete retaining wall a light or any other warning device to people traveling upon the reservoir which would give them notice of said retaining wall in the waters and * * * by constructing said retaining wall out into the waters of the reservoir without installing a warning light or some other easily visible warning device thereon.'

Separate answers were filed by the defendants, in which each denied having been guilty of any negligence which had proximately caused or contributed to Hardin's injury and death. Jackson Yacht Club also pleaded that operation of the boat, (in which Hardin had been riding), at an excessive rate of speed was the sole, proximate cause of his injury and admitted plaintiff's charge, set out in the declaration, that the 'boat was, at the time of the accident, being operated at a high, reckless, dangerous, unlawful and negligent Speed.'

Further answering, Jackson Yacht Club charged that the sole proximate cause of the accident had been the negligent operation of the boat, by Joseph or Hardin, or both in joint enterprise, at a 'fast, unlawful, unreasonable, unsafe, reckless, excessive, dangerous and negligent rate of speed, without proper lights, in the nighttime, with diminished visibility, without having the boat under control and without maintaining a proper lookout. * * *'

Plaintiff-appellant then responded to this affirmative matter in Jackson Yacht Club's answer by stating expressly, among other things, that the boat had been operated by Joseph 'at a fast, unlawful, unreasonable, unsafe, reckless, excessive, dangerous and negligent rate of speed in the nighttime, with diminished visibility, without having said boat under control and without maintaining a proper lookout' and alleged further 'that such acts and ommissions constituted negligence which was the proximate cause of the accident in question and/or combined with the negligence of Jackson Yacht Club in constructing the retaining wall in question out into the waters of the said reservoir without having provided lights or other sufficient warning devices thereon, constituted the sole proximate cause of the accident in question' and continued by stating that 'the boat in question was being operated (by Joseph) under the conditions of visibility at too great a rate of speed and admits that (Joseph) knew or should have known, by the exercise of due care, of the hazards of such navigation and that (Joseph) was guilty of negligence which was the sole proximate cause of the accident in question and/or said negligence of (Jackson Yacht Club) as set forth * * *' in the declaration. (Emphasis added.)

As to Jackson Yacht Club, appellant sought to show, by the testimony of witnesses offered as marina design experts, that proper marina design and safety required lights on retaining walls built by riparian owners, that their omission from the retaining wall of Jackson Yacht Club was negligence and that this was a proximate contributing cause of the accident. Jackson Yacht Club countered by producing its own experts in marina design who testified to the contrary. There was also expert testimony to the effect that lights on the wall, in themselves, would constitute a serious navigation hazard, calculated to confuse depth perception at night, and would hinder rather than aid navigation. It was also shown that Jackson Yacht Club's construction plans, including the wall, were submitted to and approved by the Governing Authority of the Pearl River Valley Water Supply District.

The proof showed that before the dam was closed to create the reservoir, Jackson Yacht Club had leased from the Pearl River Valley Water Supply District a strip of land or ridge, somewhat higher than the surrounding land, and which, when the lake should reach its eventual level, would extend into it as a natural peninsula. In anticipation of excessive erosion which could be expected to occur when land, formerly high and dry, is converted into the shoreline of a large body of water, and subjected to the ceaseless action of the waves against it, various methods were adopted by the prospective riparian owners to protect their property from the inroads of this erosion. Two methods seem to have been used in and near the vicinity where Hardin was injured. The Yacht Club had dug out some 5 or 6 feet at the end of what was to become the peninsula, and had enclosed the land with a concrete retaining wall, so that the water, when the dam was closed, would come against the wall and not the earthen shore. This wall was erected within the Yacht Club's property line. Later, when the water actually rose following the closing of the dam, the water, by reason of the excavation and the construction of the retaining wall, was 5 or 6 feet deep against the lakeward side of the wall.

No one saw the boat strike the wall. Joseph testified that he had suffered a loss of memory and remembered nothing from the time the boat last had been started until he found himself in the...