Mississippi Power & Light Co. v. Tripp

CourtUnited States State Supreme Court of Mississippi
Citation183 Miss. 225,183 So. 514
Docket Number33293
PartiesMISSISSIPPI POWER & LIGHT CO. et al. v. TRIPP
Decision Date10 October 1938

Division B

1 WITNESSES.

Testimony concerning a witness' reputation for truth and veracity in a community where witness had lived three years previously was admissible.

2 TRIAL.

In passenger's action against bus company for injuries allegedly caused by sudden stopping of bus, instruction which did not define particular acts relied on as constituting negligence was not erroneous where testimony pointed out acts upon which recovery was sought, and bus company obtained instruction showing facts which would constitute negligence.

3 CARRIERS.

In passenger's action against bus company for injuries allegedly caused by sudden stopping of bus, evidence held to authorize recovery notwithstanding testimony indirectly indicating that passenger was otherwise injured, while intoxicated, and notwithstanding meagerness of testimony corroborating passenger.

4. APPEAL AND ERROR.

The reviewing court can set aside a verdict as the result of prejudice, passion, or corruption only where the facts found are contrary to the overwhelming weight of the evidence.

5 DAMAGES.

$7,000 to man for loss of sight of eye and pain and suffering incident thereto held not excessive.

HON. D. M. ANDERSON, Judge

APPEAL from circuit court, Leake county Hon. D. M. ANDERSON, Judge

Suit by Charles Alonzo Tripp against the Mississippi Power & Light Company and another, for injuries caused by negligent operation of bus. From a judgment on a verdict for plaintiff, defendants appeal. Affirmed.

Affirmed.

A. M. Nelson and Green, Green & Jackson, all of Jackson, and F. E. Leach, of Carthage, for appellants.

Appellant's motion for new trial should have been sustained as the verdict was (a) the result of prejudice; and. (b) contrary to the overwhelming weight of the evidence.

Fore v. Alabama & V. Ry., 87 Miss. 211, 39 So. 493; Universal Truck Loading Co. v. Taylor, 178 Miss. 143, 172 So. 756; Newton v. Homochitto Lbr. Co., 162 Miss. 20, 138 So. 564; Yazoo, etc. v. Pittman, 169 Miss. 667, 153 So. 384; Southern Railroad v. Elder, 118 Miss. 856, 80 So. 334; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164 So. 3; Beard v. Williams, 172 Miss. 880, 161 So. 750; Shelton v. Underwood, 174 Miss. 169, 163 So. 828; Spengler v. Williams, 67 Miss. 1; Fogler v. Pittsburg Ry. Co., 139 A. 858, 291 Pa. 205; Smith v. Lehigh Valley Transit Co., 145 A. 818; Cowan v. Georgia R. & Banking Co., 184 S.E. 637; Diamond Taxicab Co. v. McDaniel, 258 Ky. 478, 80 S.W.2d 562; Crane v. Moving Co., 85 S.W.2d 911; State v. Allen, 256 S.W. 1051; Roseman v. United Ry. Co. of St. Louis, 251 S.W. 104; Chawkely v. Wabash R. Co., 317 Mo. 782, 297 S.W. 20; Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9; Schmitt v. Standard Oil Co. of Indiana, 221 S.W. 389; Kibble v. Quincy, O. & K. C. R. Co., 285 Mo. 618, 227 S.W. 42; Lamp v. Pennsylvania R. Co., 158 A. 269; Anderson v. Telephone Co., 86 Miss. 353, 38 So. 786; Southern, etc., Tel. Co. v. Quick, 167 Miss. 438, 149 So. 110; Buckley v. Jones, 79 Miss. 1, 29 So. 1000; Calhoun v. Burneff, 40 Miss. 599; Robinson v. Haydel, 177 Miss. 233, 171 So. 7; Norwood v. Andrews, 71 Miss. 641, 16 So. 262; Lee v. State, 179 Miss. 122, 174 So. 87; 70 C. J. 829, 831, sec. 1043.

When this plaintiff stated that this bus was moving in excess of the rate fixed by its governor and while so moving stopped at the exact spot whereat passengers were accustomed to disembark on the brakes being applied, within a space of 2 1/2 feet, his statement was contrary to the law of nature, it could not be true. A verdict based upon a contradiction of Nature's law will not be allowed to stand.

Anderson v. Telephone, etc., Co., 86 Miss. 353, 38 So. 786; Southern, etc., Tel. Co. v. Quick, 167 Miss. 438, 149 So. 110; Buckley v. Jones, 79 Miss. 1, 29 So. 1000; Calhoun v. Burnett, 40 Miss. 599; Robinson v. Haydel, 177 Miss. 233, 171 So. 7.

As to the manner of the accident, we have a flat contradiction between the plaintiff, who says he was holding, and either his brother Joe or his nephew R. B. fell against him and "that broke me loose." But yet his nephew pointedly swears that he did not fall against plaintiff and that Joe Tripp was further towards the back. So that we have here as to the specific facts of the injury a direct conflict between plaintiff and his sole witness, with his witness Joe Tripp not called purposely.

The alleged impeaching testimony as to Mrs. Brooks had to do with a period more than two years before the trial and at a residence other than the one whereat she lived when she was testifying.

Norwood v. Andrews, 71 Miss. 641, 16 So. 262; Lee v. State, 179 Miss. 122, 174 So. 87; 70 C. J. 829 and 831, sec. 1043.

The peremptory instructions requested by appellants severally and respectively should have been granted.

Appellee's first instruction is erroneous.

The jury were left to determine whether "the co-defendant L. O. Jones was guilty of negligence in stopping the bus." In this instruction there is no definition of negligence. What is actionable negligence as against a passenger carrier is a question of mixed law and fact, whereasto it is obligatory upon the court to state the law, leaving the jury to find the facts.

Young v. Power, 41 Miss. 209; Greenwade v. Mills, 31 Miss. 467; Wilson v. Williams Heirs, 52 Miss. 493.

In Chadwick v. Bush, 174 Miss. 75, 163 So. 823, it is declared that the juries are the judges of the facts and the trial judge throughout the trial is the sole judge of the law insofar as he gives law in written instructions and thereby it is improper to refer to the jury the question of negligence without a clear definition by the court of what was, under the law, negligence.

This instruction by substantially referring to the pleadings is erroneous for the basis of the recovery, in that instructions authorizing a reference to the pleadings and a determination from the pleadings of that described as negligence is improper.

Gurley v. Tucker, 170, Miss. 565, 155 So. 189; Southern R. Co. v. Ganong, 99 Miss. 540, 55 So. 355.

Appellee's damage instruction is erroneous.

The verdict was for $ 7,000. The average amount awarded for the loss of an eye aggregates $ 5,000.

Cotton Mill Products Co. v. Oliver. 153 Miss. 362, 121 So. 111: Teehe Lines v. Bateman, 162 Miss. 404, 139 So. 159, L.R.A. 1915F, note 196, 46 A.L.R. 1292.

Appellant's contention is under this instruction plaintiff is allowed to recover for preventable pain and suffering in the time when he should have had his eyeball removed and when had he done that which his doctor said was essential, there would have been relief. In short, appellee may not hold on to this dead eyeball with pain and suffering resulting therefrom, with mental pain for physical disfigurement, with actual hazard of total blindness, and recover for these three latter things. In short, there is an imperative obligation to minimize damages.

Liberty Life, etc., Society v. Downs, 112 So. 484; North American Acc. Ins. Co. v. Henderson, 177 So. 528; 17 C. J. 779; Dahn v. Wagner, 87 Wash. 492, 151 P. 1079.

The verdict is excessive.

Cotton Mill Products Co. v. Oliver, 153 Miss. 362, 121 So. 111; Teche Lines v. Bateman, 162 Miss. 404, 139 So. 159, L.R.A. note 1915F 196, 46 A.L.R. 1282.

Tom J. Barnett, of Carthage, and Barnett, Jones & Barnett, of Jackson, for appellee.

Appellant's motion for a new trial was properly overruled and the verdict was based (a) on a fair evaluation of the evidence, and (b) on the overwhelming weight of the evidence.

Shelton v. Underwood, 174 Miss. 159, 163 So. 828; COx v. Tucker, 133 Miss. 378, 97 So. 721; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 172 So. 756; Fore v. A. & V. Ry., 39 So. 493; Warren v. Boston Elevated Ry. Co., 155 N.E. 871; McMurray v. Twin City Motor Bus Co., 228 N.W. 154; Richmond-Ashland Ry. v. Jackson, 162 S.E. 18; 69 A.L.R. 988, Anno.

The peremptory instructions were properly refused.

Cox v. Tucker, 133 Miss. 378, 97 So. 721; Shelton v. Underwood, 174 Miss. 159, 163 So. 828; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 172 So. 756; Fore v. A. & V. Ry., 39 So. 493;, 87 Miss. 211.

The instructions given properly informed the jury concerning the law in the case. In numerous decisions this court has said that all instructions in a case must be read and considered together as one, and that technically erroneous instructions will not authorize reversal when instructions may be harmonized to present a fairly correct statement of applicable law.

Durrett v. Mississippian Ry. Co., 171 Miss. 899, 159 So. 776; Yorkshire Ins. Co. v. Brewer, 175 Miss. 538, 166 So. 361; Cox v. Dempsey, 177 Miss. 678, 171 So. 788; Bass v. Burnett, 151 Miss. 852, 119 So. 827; Hammond v. Morris, 156 Miss. 802, 126 So. 906; Southern Ry. Co. v. Ganong, 99 Miss. 540, 55 So. 355; Cox v. Dempsey, 171 So. 788, 177 Miss. 678; Yorkshire Ins. Co. v. Brewer, 175 Miss. 538, 166 So. 361; 4 R. C. L. 1144, sec. 586; Teche Lines v. Britt, 176 Miss. 681, 170 So. 294.

Appellants argue that the damage instruction granted to appellee is erroneous, basing their argument on the fact that Dr. Batson testified that he would advise an operation for the purpose of removing the eyeball. We submit that the instruction granted was strictly in accordance with law and the pain and suffering which appellee might undergo in the future, if any as shown by the evidence, might include the pain and suffering that the patient would have to undergo in case of an operation for removing the eyeball. The instruction requires the jury to base its verdict on the evidence. While the doctor testified that he is likely to have pain the rest of his life...

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