McGee v. Coccaro, 46637

• Decision Date: 01 May 1972
• Docket Number: No. 46637,46637
• Citation: 261 So.2d 465
• Parties: Ricky Andre Rochel McGEE, a Minor by his Mother and Next Friend, Annie Bell McGee, Plaintiff-Appellant, v. Regina COCCARO, Defendant-Appellee.
• Court: Mississippi Supreme Court

Page 465

261 So.2d 465

Ricky Andre Rochel McGEE, a Minor by his Mother and Next Friend, Annie Bell McGee, Plaintiff-Appellant, v. Regina COCCARO, Defendant-Appellee.

No. 46637.

Supreme Court of Mississippi.

May 1, 1972.

Roland C. Lewis, Jackson, Ellis J. Farris, Vicksburg, for appellant.

Ramsey, Bodron & Thames, Vicksburg, for appellee.

GILLESPIE, Chief Justice:

This is an appeal from the Circuit Court of Warren County. Ricky Andre Rochel McGee (plaintiff), a seven-year old boy, sued Regina Coccaro (defendant) for personal injuries sustained by plaintiff when struck by an automobile driven by defendant. The jury returned a verdict for $10,000. Defendant filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The trial court sustained the motion for judgment notwithstanding the verdict and entered judgment for defendant. Plaintiff appealed.

Defendant was driving her Chevrolet automobile north on Drummond Street in the City of Vicksburg. As she drove through an area partly business and partly residential, there were five or six cars parked perpendicular to the curb in front of the Magnolia Fountain, an ice cream store. Plaintiff ran from behind the northernmost of the parked cars and reached a point near the center of Drummond Street when he was struck by defendant's car. Defendant's car laid down thirty-nine feet of skid marks and was nearly stopped when plaintiff was struck. He was knocked down and landed on his head, and sustained extremely serious and permanent injuries. The declaration alleged excessive speed, failing to keep a proper lookout, and failing to keep the car under reasonable and proper control.

It is uniformly held that in determining whether a peremptory instruction should be given, or a motion notwithstanding the verdict should be sustained, the court must look solely to the testimony on behalf of the party against whom the motion is made, and consider that testimony as true, together with all reasonable inferences which could be drawn therefrom. And even when the evidence is such that a judgment for the adverse party would have to be set aside as being contrary to the overwhelming weight of the evidence, it does not follow that a directed verdict should be granted. Dehmer v. Hederman, 252 Miss. 839, 173 So.2d 924 (1965), 252 Miss. 839, 175 So.2d 136 (1965). This rule was reaffirmed in Logan v. Thomas, Miss., 259 So.2d 480, decided March 13, 1972.

We have reviewed the evidence in this case in the light most favorable to plaintiff and looking solely to the evidence favorable to plaintiff, together with all reasonable inferences that may be drawn therefrom, we conclude that the trial court erred in sustaining the motion for judgment notwithstanding the verdict. There was no evidence sustaining the charges of failing to keep a proper lookout or failing to keep the car under reasonable control. There was more than a scintilla of evidence of the issue of...