Marx v. Berry

• Decision Date: 18 May 1936
• Docket Number: 32253 1/2
• Citation: 176 Miss. 1,168 So. 61
• Court: Mississippi Supreme Court
• Parties: MARX v. BERRY

168 So. 61

176 Miss. 1

MARX v. BERRY

No. 32253 1/2

Supreme Court of Mississippi

May 18, 1936

Division B

1. APPEAL AND ERROR. Automobiles.

In action arising out of collision allegedly resulting from absence of headlights on defendant's truck, instruction that verdict should be for plaintiff if collision occurred more than one-half hour after sunset held reversible error since violation of statute would not make out absolute case of liability (Code 1930, secs. 5575, 5588).

2 TRIAL.

In automobile collision case, erroneous instruction authorizing verdict for plaintiff if defendant was violating statute regarding headlights at time of accident held not cured by other instructions that evidence must show that statutory violation was proximate cause of injury, since instructions were so radically conflicting as to mislead jury (Code 1930 secs. 5575, 5588).

HON. J. F. GUYNES, Judge.

APPEAL from circuit court of Copiah county HON. J. F. GUYNES, Judge.

Action by J. H. Berry against George Marx. Judgment for plaintiff; and defendant appeals. Reversed and remanded.

Reversed and remanded.

J. Hunter Garth, of Hazlehurst, and ROSS R. Barnett, Arden Barnett and P. Z. Jones, Jr., all of Jackson, for appellant.

Instruction No. 1 for the plaintiff was erroneous and should not have been given. This instruction is as follows: "The court instructs the Jury at the request of the plaintiff that if you believe from the preponderance of the evidence in this case that the collision between the plaintiff's and defendant's trucks involved, in this suit occurred more than one-half hour after sunset; then your verdict should be for the ptaintiff, as to liability.

Instruction No. 3 for the plaintiff was likewise erroneous and should not have been given.

These instructions are based upon an alleged violation by the defendant of Section 5575, of the Code of 1930, and are both erroneous for several reasons: 1. The evidence did not show that the violation, if any, of the statute in any wise contributed to the collision between the trucks, or was the proximate cause thereof. 2. A part of the statute was inapplicable to the issues involved, and should not have been quoted. 3. Instruction No. 1 amounted to a peremptory instruction and totally disregarded the defense that the plaintiff's negligence was the cause of the injury,

Section 5575, Code of 1930; Sumerville v. Keeler, 145 So. 721; Murphree v. Willingham, 133 So. 213; Solomon v. Continental Baking Co., 160 So. 732; Harper v. Wilson, 140 So. 693; Wheat v. Wheat, 139 So. 849; Hines v. McCullers, 83 So. 734; Dr. Pepper Bottling Co. v. Gordy, 164 So. 236; Thompson v. Miss. Cent. R. Co., 186 So. 353; Billingsley v. Illinois Central R. Co., 100 Miss. 612, 56 So. 790; Etheridge v. Norfolk, etc., Co., 143 Va. 789, 129 S.E. 680; Y. & M. V. R. R. Co. v. Cox, 132 Miss. 564, 97 So. 7.

It is our opinion that the plaintiff in this case did not show that the failure of the defendant's truck to blow its horn or to be equipped with lights in any wise caused or contributed to his injuries, and that the statute invoked without any evidence did nothing but mislead and confuse the jury, and under the peremptory that they must find for the plaintiff if the accident occurred more than thirty minutes after sunset, were cut off from the consideration of any other issues in the case.

Clayton v. Glasscock, 127 So. 538; Chadwick v. Bush, 163 So. 823.

W. S. Henley, of Hazlehurst, and G. Q. Whitfield, of Jackson, for appellee.

We respectfully submit that w!hen the instructions are considered together that the defendant was dealt with most leniently and received instructions on his theory of the case which were entirely too liberal.

We submit that the use of lights on automobiles when traveling after dark is not only a mandatory duty under the statute, but is so commonly used that it would be surplusage and unnecessary consumption of the court's time to explain to the jury the effect of not having lights on a car. Such a situation is self evident and a matter about which there could be no misunderstanding.

2 Blashfield's Cyclopedia of Automobile, pages 6 and 11; Sloan v. Gulf Refining Co., 139 So. 26.

We respectfully submit that the evidence offered by the defendant's witnesses is moist conclusive and shows, beyond a doubt that the cause of the accident was the failure of the plaintiff to be warned of the presence of the defendant's truck until it was too late to avoid the accident. Such warning could have been given either by the lights or a horn.

Wall v. Cotton, 115 So. 90; Watts v. Montgomery Transfer Co., 175 Ala. 103, 57 So. 471; Yano v. Scott Bruquit Co., 199 N.W. 48; Frazier v. Hull, 127 So. 775; 2 Blashfield's Cyclopedia of Automobile, page 920.

Taking instruction No. 2 as a whole, the defendant was certainly not deprived of any rights. The jury was told that notwithstanding the defendant's admittance of negligence in having no lights and no horn, and deliberately going into an emergency without stopping, yet, if by any process of reasoning, they might say that the plaintiff was solely to blame, then it was their sworn duty to return a verdict for the defendant. With such a liberal instruction and such emphatic language, the defendant cannot complain that the jury was not encouraged to exonerate the defendant if they thought that Berry was solely responsible for the accident.

The lower court's liberality did not end here, but inspite of the admitted violation of the statute, the defendant was granted the benefit of the emergency rule, and a doubtful rule at that, justifying his violation of the rules of the road, and the jury was further instructed that if the defendant was justified in violating the rules of the road, the verdict should be for the defendant.

Instruction No. 1, of course, must be read together with No. 3, and read together they supplement each other and submitted the question of proximate cause and negligence of the defendant contributing proximately to the injuries, to the jury. A later instruction, No. 7, fully covered contributory negligence of the plaintiff.

In truth, Instruction No. 1, standing alone, would not be error, for the reason that all the evidence showed that the defendant's driver, Alex Catchings was driving on the highway without lights and without tooting his horn every two hundred (200) feet, and that at the moment of the collision he was on the left side of the road and that at the moment after the collision Ms car and the plaintiff's were on the south side of the road in the ditch.

The question as to whether the collision happened more than thirty minutes after sunset was in conflict, and that was submitted to the jury in Instruction No. 1. If they found, as they did, that the collision happened more than thirty minutes after sunset, the overwhelming evidence as to the fact that the driver, Alex Catchings, was driving without lights and not sounding his horn every two hundred (200) feet, was such, that as a matter of law, it could be said that it was bound to have contributed proximately to the injuries of the plaintiff, but be that as it may, instruction No. 3 supplemented instruction No. 1, and submitted to the jury both the negligence of the driver and the question as to whether said negligence proximately contributed to the injuries of the plaintiff, and it would seem to us absurd for appellant to expect at the hands of this court a reversal, because of the giving of either or both of those two instructions. The almanac shows sunset was at 5:50 o'clock on February 22, 1935, and the court takes judicial notice of the hour of sunset in considering necessity for lights. The collision was at 7 p. m.

153 Minn. 391; 57 S.D. 178.

The instructions in this case are all right. The trouble is with the reckless violation of section 55.75 by the defendant in almost every respect mentioned therein.

Hammond v. Morris, 156 Miss. 802, 126 So. 908.

Instruction No. 1 was supplemented by instruction No. 3, and read together they could not possibly have misled the jury in this case, and counsel for the appellant cannot claim that he is entitled to a reversal of this case, after the long, hard fight ending in a verdict against him, because of the giving of instruction No. 3, which according to the Supreme Court speaking through Judge Ethridge must be read together with other instructions, and the jury must be presumed to have used their God given common sense, and if they did, they could not have possibly been misled.

Bramer v. Percival, 133 Wash. 126; Yellow Taxi Baggage Co. w Pettyjohn, 157 Okl. 232.

OPINION

Anderson, J.

Appellee brought this action against appellant in the circuit court of Copiah county to recover damages for an injury caused by a collision between appellee's truck, being driven by himself, and a truck belonging to appellant being driven by his servant, Alex Catchings, alleged to have resulted from the negligent handling of appellant's truck. There was a verdict and judgment in appellee's favor in the sum of one thousand dollars. From that judgment appellant prosecutes this appeal.

Appellant is a road contractor with headquarters in Hazlehurst. In his road work he uses trucks to haul materials, and employs drivers and other helpers; part of...