McKinzie v. Coon, 92-CA-00195-SCT

• Decision Date: 01 June 1995
• Docket Number: No. 92-CA-00195-SCT,92-CA-00195-SCT
• Parties: Barbara McKINZIE v. Billy J. COON.
• Court: Mississippi Supreme Court

Page 134

656 So.2d 134

Barbara McKINZIE v. Billy J. COON.

No. 92-CA-00195-SCT.

Supreme Court of Mississippi.

June 1, 1995.

Stephen J. Maggio, Gulfport, for appellant.

Floyd G. Hewitt, Jr., Compton Crowell & Hewitt, Biloxi, for appellee.

EN BANC.

SMITH, Justice, for the Court:

On December 26, 1989, Barbara McKinzie, returning to her home in Pensacola, Florida was proceeding westbound on U.S. Highway 98. At the intersection of U.S. Highway 98 with Highway 63, Billy J. Coon pulled out in front of McKinzie and an accident occurred. McKinzie filed a negligence suit against Coon in the Circuit Court of George County which resulted in a jury verdict in favor of Coon. Aggrieved with the verdict, McKinzie appeals to this Court, assigning three issues for review:

I. THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR DIRECTED VERDICT AS TO THE ISSUE OF NEGLIGENCE.

II. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S INSTRUCTION NO. D-8.

III. THE PLAINTIFF IS ENTITLED TO A NEW TRIAL DUE TO COUNSEL OPPOSITE'S IMPROPER AND INFLAMMATORY REMARKS DURING SUMMATION AND COUNSEL OPPOSITE'S DEPARTURE FROM THE RECORD DURING CLOSING ARGUMENT.

We find McKinzie's Issue I to be worthy of discussion. Issues II and III are without merit.

This Court has held that although the issue of whether a directed verdict should have been granted may present a close question, it does not necessarily follow that the jury's verdict should stand. There is no testimony that suggested that McKinzie was operating her vehicle negligently in any manner at the time of the collision. The argument of Coon's counsel which strenuously urges that "[c]ertainly there is nothing is this record that demonstrates [the jury's] judgment was clearly against the overwhelming weight of the evidence or the result of sympathy, bias, or prejudice," is not persuasive. Coon's argument is just that, argument and nothing more. There was no factual evidence offered indicating any negligence by McKinzie. Coon's negligence was established as a matter of law.

After thorough review, we find the verdict of the jury is contrary to the overwhelming weight of the evidence and the trial court erred in not granting McKinzie's requested directed verdict on liability. We must reverse and render on liability and remand for a new trial on damages only.

STATEMENT OF FACTS

Barbara McKinzie, a fifty-year-old resident of Pensacola, Florida was employed as a computer programmer analyst with the U.S. Navy. In December of 1989, McKinzie visited her daughter who attended the University of Southern Mississippi. On the morning of December 26, she was returning to Florida from Hattiesburg, in no particular hurry. At the intersection of Highway 98 and Highway 63, "a car pulled out in front of [her]. [She] applied the brakes and went right into it." The front right fender of McKinzie's car struck the center of Coon's vehicle's passenger side. McKinzie estimated her speed as fifty miles an hour at the time of the accident. McKinzie identified photographs of the two automobiles at the scene of the accident.

McKinzie testified she stayed in the right lane as she approached the intersection. At the point of impact, McKinzie stated her vehicle was to the right of Coon's vehicle and "both vehicles then traveled through the intersection onto the side of the road." After a few moments, McKinzie left her vehicle to go check on the other driver. She testified she overhead Coon saying to another person, "I just didn't see her, I just didn't see her."

On cross examination, McKinzie stated she had often driven on Highway 98 to and from Hattiesburg. She knew at the time of the accident she was driving about 50 miles per hour or less because she was going up a hill just prior to reaching the intersection. She testified it was when she reached the top of the hill that Coon pulled out in front of her. McKinzie admitted she skidded both in applying her brakes before striking Coon's car and afterwards when both cars traveled On redirect, McKinzie testified she tried to avoid Coon's car by applying her brakes and steering to the left, but "it happened too fast...." She estimated she was 75 feet from the intersection when Coon pulled out into it. She did not feel there was anything else she could have done to avoid the accident.

through the intersection. She did not dispute that skid marks photographed at the scene of the accident were hers. McKinzie denied speaking with a woman accompanying Coon in the ambulance and telling her she, McKinzie, was in a hurry to get back to Pensacola.

David Prece testified he lived on Highway 63 North and was a witness to the accident. Prece was a passenger in a car driving north on Highway 63 which approached the stop sign and stopped at the intersection with Highway 98. There was also a car approaching the opposing stop sign, traveling south on Highway 63. Prece stated "At that time this car pulled out, and there was oncoming traffic." Prece continued, "The car that was coming from the stop sign ... it sort of seemed like the driver stopped, but he just pulled out as if he wasn't paying attention." Prece identified a photograph of Coon's vehicle as the car which was at the intersection opposite him, and involved in the accident. Waiting at the stop sign, Prece could see oncoming traffic and nothing obstructed his view. He identified a photo of McKinzie's vehicle as the one he noticed approaching the intersection as Coon pulled out. Prece first noticed McKinzie's vehicle "when the two things hit my eye at the same time; the car coming off the stop sign when it shouldn't have been." He noted McKinzie was "pretty close" to the intersection at that point.

On further questioning, Prece stated he was familiar with the intersection, passing through it "six to eight times a day, going both north/south and east/west." There were no traffic control devices other than stop signs on Highway 63 at the intersection. Asked whether, due to the incline, it was true that a driver couldn't see the approaching intersection until he reached the top of the hill, Prece stated he had "always had ample time to see the intersection." He agreed McKinzie's car left skid marks before and after the collision. On redirect, Prece stated as a person drove up the incline, there was a distance of about three hundred (300) feet where the intersection was clearly visible.

James C. Clark testified he witnessed the accident. Clark's truck was stopped at the stop sign on Highway 63 across from the Coon vehicle; David Prece was his passenger. Clark described the accident: "I came up to the intersection, and I was stopped, and this young boy was on the other side.... And there was one car had came by, and then this other lady--she was probably maybe a hundred feet to two hundred feet from the intersection--He just, I reckon he just forgot what he was doing or something. He just pulled out in front of her. There was no way to miss him." Clark stated he could see McKinzie's car approaching as he was stopped at the intersection.

Mike Bullock of the Mississippi Highway Patrol testified he had been employed there for the past 4 1/2 years. Bullock investigated 300-400 previous automobile accidents. Bullock conducted an investigation of the accident. McKinzie reported her speed at fifty miles per hour; Coon reported traveling 5 miles per hour. Bullock measured skid marks from McKinzie's car at sixty-five feet prior to impact and for sixty feet thereafter. He could not give an opinion based on the skid marks whether McKinzie was driving over the posted speed limit when the accident occurred, but testified his investigation revealed nothing which indicated McKinzie was speeding. Explaining the term "right-of-way," Bullock stated Highway 98 had the right-of-way at the intersection with Highway 63 since Highway 98 had no traffic signals or anything to hinder travel in a direct course. The results of Bullock's investigation were consistent with the speeds related by the parties.

On further examination, Bullock agreed the term right-of-way varies with circumstances; he stated if there were no stop signs and two cars entered an intersection, the one which entered first had the right-of-way. Bullock stated a driver with a stop sign could only pull into an intersection if he felt he could do so with reasonable safety. Bullock The defense called Donna Milam, Coon's aunt. On December 26, 1989, Milam, her mother, her two children and Coon were returning home on Highway 63 south. The group traveled in two vehicles, with Coon alone in the second one. At the intersection with Highway 98, Milam stated the vehicle in which she was riding stopped at the stop sign. Milam's vehicle drove across the intersection. She turned to see Coon's car stopped at the stop sign, which fact she related to her mother "because of so many accidents ... there." After seeing Coon stopped, Milam turned back and Coon was not there. She testified she told her mother to stop and saw Coon's car "was over towards where the yield sign would have been...."

was a "level one" accident investigator and could not estimate how many feet per second a car traveled at given rates of speed or driver reaction times. Bullock had no memory of the accident other than what he recorded at the scene. His notes indicated he interviewed Prece and Clark as witnesses. McKinzie rested and her motion for directed verdict was denied.

On cross examination, Milam stated she saw no traffic between the time her vehicle crossed the intersection and when she looked to check on Coon. Milam had no reason to believe Coon would not have stopped at the stop sign.

Elizabeth Kittrell, Coon's grandmother, rode in the ambulance and stated McKinzie appeared "a little bit disturbed about something else." Kittrell testified that McKinzie told her she had to meet her daughter at the airport in Pensacola that afternoon.

Billy Coon, defendant/appellant testified that on December 26, 1989, he was...