Marr v. Nichols, 44839

• Decision Date: 01 April 1968
• Docket Number: No. 44839,44839
• Citation: 208 So.2d 770
• Parties: William G. MARR, Jr., and Morris Laughter v. Mrs. Bessie NICHOLS.
• Court: Mississippi Supreme Court

Page 770

208 So.2d 770

William G. MARR, Jr., and Morris Laughter v. Mrs. Bessie NICHOLS.

No. 44839.

Supreme Court of Mississippi.

April 1, 1968.

Wilroy & Wilroy, Walker, Franks, Rone & Bridgforth, Hernando, for appellants.

Charles C. Finch, Ben Barrett Smith, Batesville, Walter Buford, Memphis, Tenn., for appellee.

JONES, Justice:

In DeSoto County, Misissippi, State Highway Number 305 is a hard-surfaced two-lane road which extends generally north and south and which intersects on the crest of a hill a gravel road known as College Road which runs generally east and west. Appellee, also the cross-appellant, lived west of Highway 305. About 7:30 p.m. on Saturday, April 19, 1966, appellee (hereinafter called Mrs. Nichols) was on the way to church with her husband who was driving the car. The church was situated south of the intersection of Highway 305 and College Road. They entered Highway 305 and turned south. About one hundred yards south of the intersection they were struck from behind by a car owned by appeallant Laughter and being driven by appellant Marr. As a result thereof Mrs. Nichols received numerous and serious injuries. Suit was filed in the Circuit Court of DeSoto County as the result. The judge below peremptorily instructed the jury for the plaintiff on liability and submitted to the jury the question of damages alone. The verdict was for $6,250. Thereafter a motion for a new trial was made by Mrs. Nichols alleging that the verdict of the jury was grossly inadequate.

The circuit judge sustained the motion and granted to Mrs. Nichols a new trial on the issue of damages alone. It is from this order the appellants appeal. Mrs. Nichols cross-appeals.

Appellants assign as error (1) the granting of a directed verdict in favor of appellee (2) the granting of the motion for a new trial solely on the question of damages, and (3) the failure to sustain the motions of the appellants for mistrial.

The cross-appellant assigns as error (1) the granting of a comparative negligence instruction to the appellant (2) the granting of instructions that the negligence of the driver of the automobile in which Mrs. Nichols was riding might be imputed to her (these included one on joint venture), and (3) the refusal to allow into evidence certain photographs offered by Mrs. Nichols. We are affirming and remanding on direct appeal and reversing and remanding on cross-appeal.

The pertinent facts were that Mrs. Nichols and her husband were on the way to their church. They came from the west along College Road to the intersection of Highway 305. Each of them testified that they drove to the intersection, stopped before entering thereon, looked both ways, and saw no cars. Thereupon they drove upon Highway 305 and headed south. After proceeding about one hundred yards on the highway, they were struck a terrific blow from the rear. Their car was knocked to the right of the road with the front turned in the direction of the intersection. The other car went off the left-hand side of the road and was also turned back toward the intersection.

One of the appellants, Mr. Laughter, was called as an adverse witness, but his testimony was of no benefit in explaining how the collision occurred. He testified that he did not know what happened.

The only eyewitness who testified, other than Mr. and Mrs. Nichols, was a man by the name of Yon. He was on his way from Olive Branch to Lewisburg and was traveling on Highway 305 in a southerly direction. As he approached the crest of the hill and the intersection, the appellants passed him. The witness turned off the edge of the highway to let them come by. He estimated their speed as they passed him at seventy miles per hour. He said the appellants passed him just before he got to the intersection warning sign which was later shown to be about 500 feet north of the intersection. From then until the time of the collision they were not out of his sight, and he saw them run into the back of Mr. Nichols' car. He estimated the distance form the intersection south to the place of the collision at about one hundred feet (later shown to be 289 feet). He stated that both of the cars had taillights. He first saw the taillights of Mr. Nichols' car just before the appellants passed him. By this Mr. Nichols would have entered the intersection, which was some 500 feet south of where the defendants were. Yon didn't think the cars turned over when they collided, they did turn around so that both of them were facing back in a northerly direction. Mr. Nichols' car was on the right-hand side, and the other car was on the left-hand side. You also testified that the northbound lane of traffic was clear at the time of the collision. An effort was made to construe Yon's testimony to the effect that the Nichols' car did not stop before it entered the intersection. His testimony is not subject to such construction. Yon said several times he did not see the Nichols' car stop, but he also stated he didn't know because the car could have stopped before it came into his view. He was about 500 feet north.

Mr. Sewell, a highway patrolman, arrived at the scene about six minutes after the accident. He made a plat of...