Murphy v. Burney
| Decision Date | 11 November 1946 |
| Docket Number | 36203. |
| Citation | 27 So.2d 773 |
| Court | Mississippi Supreme Court |
| Parties | MURPHY v. BURNEY. |
Ford & Ford, of Pascagoula, for appellant.
H. W. Gautier, of Pascagoula, for appellee.
Appellee recovered judgment for damages arising out of a collision with appellant's automobile. Under the facts of the record the issues of negligence and liability were for the jury.
Appellant complains of certain instructions given for the plaintiff, appellee here. These instructions authorized a recovery of full damages if the jury found that the damage resulted proximately from the negligence of the defendant and while the plaintiff was conducting himself in the manner shown by his evidence. The argument is that the instruction takes no account of the possibility that plaintiff may have been guility of contributory negligence, and further that the recital of facts in an instruction violates Code 1942, Section 1530. We think neither position is supported. To the first we must answer that neither party requested instructions upon contributory or comparative negligence. Avent v. Tucker, 188 Miss. 207, 194 So. 596.
Compare Graves v. Johnson, 179 Miss. 465, 176 So. 256. To the second we respond that a party has the right to embody his theory of the case in his instruction if there is testimony to support it and if made conditional upon the jury's finding that such facts existed.
The refusal of the trial court to allow the witness Cunningham to testify regarding the general reputation of plaintiff's driver as reckless was proper. Here this trait was not a point directly in issue. Moreover, the issue of his negligence on this particular occasion may not be resolved by proof of general reputation. 5 Am. Jur., Automobiles, Sec. 619; Id., Evidence, Secs. 319, 332; Id., Negligence, Sec. 320. Compare Maley v. Herman, 166 Miss. 811, 146 So. 309; 32 C.J.S., Evidence, § 432, p. 64. Finally the proof was inadequate to show the existence of such reputation, if relevant.
Affirmed.
SYDNEY SMITH, C. J., did not participate in this decision.
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