Haynes-Walker Lumber Co. v. Hankins

• Decision Date: 16 November 1925
• Docket Number: 25084
• Citation: 141 Miss. 55,105 So. 858
• Court: Mississippi Supreme Court
• Parties: HAYNES-WALKER LUMBER CO. v. HANKINS et al. [*]

105 So. 858

141 Miss. 55

HAYNES-WALKER LUMBER CO. v. HANKINS et al. ^[*]

No. 25084

Supreme Court of Mississippi

November 16, 1925

Division B

1. TRIAL. No direction of verdict against substantial evidence for other party.

Where there is substantial evidence tending to establish plaintiff's case, verdict may not be directed for defendant.

2 HIGHWAYS. Evidence of liability of owner of auto truck colliding with auto held sufficient to go to jury.

Evidence in action for collision of auto truck with automobile, held sufficient to go to jury on question of defendant's liability.

3 HIGHWAYS. Instruction putting on defendant in auto collision case burden of showing deceased's driver was so reckless as to put deceased on notice of danger of riding with him held not erroneous.

Instruction in action for death from collision of defendant's auto truck with automobile driven by H., with whom deceased was riding, that burden was on defendant of showing by preponderance of evidence that H. was such a reckless driver as to put deceased on notice that it was dangerous to ride with him, held, so far as it went, not erroneous.

4 TRIAL. Instruction on burden of proof held in connection with the other instructions, not misleading.

Instruction in auto collision case as to burden of proof that deceased's driver was so reckless as to put deceased on notice that it was dangerous to ride with him held, in connection with the other instructions, not misleading.

5. TRIAL. No error, though single instruction is incomplete, where all, taken together, embody the applicable law. All the instructions in a case are to be considered together as one, and interpreted as a whole, and if, when so viewed, they embody the applicable law, there is no error, though one taken alone is incomplete.

6. APPEAL AND ERROR. Statement of judge held harmless in view of evidence.

There being really no conflict in the evidence as to the fact that the injury done deceased by defendant causd his death, statement of judge, in jury's presence, "I do not think that has anything to do with the case; he... died from that wound," held harmless.

7. DEATH. Two thousand five hundred dollars held not grossly inadequate in view of evidence of contributory negligence authorizing diminution.

Verdict of two thousand five hundred dollars for death cannot be considered grossly inadequate and the result of passion and prejudice, where there was evidence of contributory negligence, and the jury may have concluded deceased was guilty thereof, and may, without being instructed to that effect, have diminished damages, as provided by Hemingway's Code, section 502, as they had a right to do, if evidence justified it, though not so instructed.

HON. C. P. LONG, Judge.

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

Action by Dan R. Hankins and others against the Haynes-Walker Lumber Company. Judgment for plaintiffs, and defendant appeals; plaintiffs prosecuting a cross-appeal. Affirmed.

Affirmed on direct and cross-appeal.

Cunningham & Berry, for appellant.

The appellee is contradicted by so many established physical facts that his theory is so impossible that the trial court ought to have given a peremptory instruction in favor of the appellant as was requested. Fore v. A. & V. R. R. Co., 39 So. 493; Southern R. R. Co. v. Elder, 80 So. 333; M. & O. R. R. Co. v. Bennett, 90 So. 113; Thomas v. State, 92 So. 225.

The appellant's theory of this wreck was corroborated by one eye witness, whose evidence was in every material way in harmony with the state of facts here made. There are a half dozen physical conditions that are not contradicted by this record which makes the theory of appellee impossible; and, hence, unbelievable.

In the face of all this unreasonable state of affairs, it is unconscienable to think a jury would render a verdict for the plaintiffs except as the result of prejudice and passion, or as the result of some error of law put into their minds by the erroneous instructions of the court. See Southern Railroad Company v. Elder, 80 So. 334; the Bennett case, 90 So. 113.

The stories in the Elder and Bennett cases are parables in comparison to that of the appellee's under consideration in the instant case. The trial court gave an instruction to the jury over the objections of the appellant, which is the most unreasonable shift of burden that we have observed in our experience.

This goes very much further than to shift the mere burden of showing who was to blame in the accident, which of itself would be error, but it goes far enough to state that the burden is on the appellant to show that the driver, appellee, was such a reckless driver as to put everybody in his car on notice of the same. What show does it give appellant, who is a stranger to appellee, and who can only know of his conduct at the place and time of the wreck? If it were the law that the burden is on defendant in every automobile wreck to prove the reckless character of the driver of the other car, and not only this, but to prove that everybody in the other fellow's car had notice of such reckless character as to driving, it would be a most wonderful state of affairs. It would legally resolve itself into the question of who in the wreck shall become plaintiff for he shall be victor, and who shall become defendant, for he shall be doomed.

This instruction makes no reference to contributory negligence at all. Such an error cannot be cured by any instruction given on behalf of defendant, and we cite the following authorities to support this view: M. C. McNeill v. Bay Springs Bank, 56 So. 333; Illinois Central R. R. Co. v. McGowan, 46 So. 55.

Every defendant in court, when his property is in jeopardy, and his rights involved, ought to be given a legitimate scope of cross-examination, and the trial judge ought to withhold remarks that clearly show and demonstrate his own arbitrary opinion of the weight of legitimate evidence, and the appellant had the burden of this arbitrary statement to carry throughout the trial, and no one can gainsay the prejudicial effect it had upon the minds of the jury, who may be very much influenced by the arbitrary expressions of the court on the weight of evidence. Lee v. State, 23 So. 628; Smith v. State, 73 So. 792; 2 Thompson on Trials, sec. 963 at 810.

There is no evidence in the record of the earning capacity even sufficient to purchase the food and clothing necessary to the existence of deceased. There is no evidence at all to guide the jury in measuring or considering the value of companionship. In fact, the evidence wholly fails to show that any of appellees were entitled to recover anything on account of the loss of companionship, yet the court instructed the jury to consider this element of damage as though it had been proved.

The proof does not show evidence sufficient to warrant the jury finding in the sum of two thousand five hundred dollars.

C. R. Bolton, for appellees.

The facts in this case were submitted to the jury, and they based their verdict upon competent testimony, and it is well settled that such a finding of a jury will not be disturbed by this court. Appellants' brief is largely taken up in arguing the facts.

I. Appellants say it is unconscionable that the jury should have rendered a verdict against them. Rex Hankins and, Grady Deaton, the drivers of the car and truck respectively, each tell how the wreck happened. Let us put them side by side. Their stories are in direct conflict. Both cannot be true. Rex says Deaton ran into him on the north side of the road--Deaton says Rex ran into him on the south side. Rex does give Deaton credit for discovering his danger and making a dive for the south side to try to avoid it, but says he was too late and struck his car in trying to get back on his right side. Deaton does not give Rex credit for even trying to do anything to avoid the collision, but says, without swerving, he ran straight into his truck--a statement that does not appeal strongly to reason. What is the character of the evidence supporting Deaton?

The damaged cars prove only the results of the collision, but the tracks speak in loud tones as to where it happened, and how it happened, and that was the question before the jury. This testimony corroborates Rex Hankins' story and is squarely in conflict with that of Deaton. Plaintiffs' theory is further supported by the position of the cars as found by the officers.

The verdict of the jury was not only warranted by the testimony of Rex Hankins, but also by the evidence of the officers of the law whose duty it was to investigate the matter, by plenty of physical facts, if desired to resort to them.

Appellants' effort to stretch the Elder and Bennett cases to cover this case falls far short of the mark. In each of those cases, the verdicts of the jury were rendered on the bare and unsupported testimony of the plaintiffs alone. In the instant case, we have Rex Hankins' testimony, supported by what we think is the most trustworthy of all the evidence, the evidence of the officers of the county whose duty it was to investigate the wreck.

As we understand the rule of law, the verdict of the jury will not be set aside simply because the better reasoning may seem to warrant a verdict for the opposite party, nor where the court, if deciding the question, would decide it differently; but the jury is the sole judge of the facts, and where based upon competent testimony, their finding will not be disturbed. See N. O. & N. E. R. Co. v. Ward, 96 So. 401; L. & N. R. Co. et al. v. Jones, 98 So. 230; F. W. Woolworth Co. v. Volking, 100 So. 3.

II. Appellants' complaint of the instruction as to Rex Hankins being a reckless driver is wholly without merit....