Rayborn v. Freeman, 44818

Decision Date25 March 1968
Docket NumberNo. 44818,44818
Citation209 So.2d 193
PartiesJasper RAYBORN v. David FREEMAN.
CourtMississippi Supreme Court

Collins & Tew, Laurel, for appellant.

Pack & Ratcliff, Laurel, for appellee.

BRADY, Justice.

This is an appeal from a judgment of the Circuit Court of Jones County, Mississippi, which awarded appellant the sum of $500 on account of injuries received in an automobile accident with the appellee.

On August 6, 1965, at approximately 7:40 A.M., the appellant was returning to his home north of Laurel, Mississippi. The appellant was driving a 1961 Chevrolet truck in a northerly direction over Highway 11 which is intersected by an east-west blacktop road known as the Erata Road. When the appellant was approximately a hundred yards from the intersection he passed a 'bobtailed' van truck. Appellant testified that he never turned back into the east or northbound lane of traffic ahead of the van truck but continued in the west or southbound When he turned left onto the Erata Road he held out his hand indicating a left turn and his turn signal was operating. He lacked about three feet being off Highway 11 when he was struck in the rear of his truck by the appellee, Jimmy David Freeman.

lane of the highway as he approached the Erata crossing.

The appellee testified that Highway 11 was a rolling highway. As he topped a little rise he saw a van truck approximately ten feet high; that it was impossible for him to see over it or through it; that when he came over the knoll he could see down the road approximately a half mile; that he was traveling about fifty miles per hour; that the pickup truck of appellant was about twenty feet ahead of the van truck. He further testified that the appellant drove the pickup truck over and in front of him as he was proceeding north in the west lane; that he put on his brakes and struck appellant. He stated 'I had the truck beside me and the big ditch there and him in front, and I figured my best bet was him.' The appellee said he was between 200 to 300 yards from the intersection when he began to pass the van truck.

The record clearly shows that the appellee was endeavoring to pass the van truck when he was within one hundred feet of the crossing. He testified that he was approximately fifty yards south of the intersection when the appellant 'came over' into the left lane, and the collision occurred about 35 to 40 feet south of the intersection.

The pictures introduced in evidence clearly show that the intersection is marked and the intersection sign is visible from the south to persons proceeding north. The appellee admitted that he did not see the intersection sign; that 'I was concentrating on passing the truck, and whether anything was coming in the left hand lane.' The pictures also clearly show that the intersection is plainly visible to persons using Highway 11 proceeding north or south for a distance of several hundred yards. A highway patrolman testified there were skid marks from the west side of Highway 11 to where appellant's truck came to rest in a ditch on the north side of Erata Road. The position of the truck and skid marks tend to corroborate appellant's testimony that he was within three feet of being off Highway 11.

Appellant was sixty-nine years of age. He obtained and sold fish to persons between the Coast and Laurel and in the Laurel area. He grossed $50 a week and was able to net approximately $25 a week.

Appellant did not believe that he was seriously injured and subsequent to the wreck he went to his home after delivering a few fish that he still had. After reaching his home he became ill and was experiencing pain occasioned by the wreck. He ate no dinner but drank a pint of milk. Subsequently he became nauseated and vomited. On August 9, appellant was not improving and he went to see Dr. Ellis. He was experiencing severe pain in his neck and shoulders. Dr. Ellis examined him on August 9 and hospitalized him through August 12. Dr. Ellis testified that he had multiple bruises of his chest and also was experiencing bladder trouble. While in the hospital the doctor discovered that he had duodenal ulcers and he was treated also for this malady. He was also operated on for prostate trouble and was suffering from arthritis. Dr. Ellis testified that he probably had the arthritic condition at the time of the accident but that it had 'worsened.' The doctor had treated appellant for arthritis of the back as early as September 3, 1963. The doctor testified that in August 1965 appellant was suffering from an arthritic condition in the cervical or neck area. He testified that trauma will precipitate and aggravate arthritis and that his arthritis was aggravated by the wreck. Dr. Ellis advised that there was no connection between the prostate operation and the wreck but that in his opinion the wreck had some bearing on the appellant's ulcer.

Letters written by the doctor were introduced in evidence. One letter written October There are but two issues for our consideration in this cause. The first is: Was the verdict of the jury as to the damages awarded grossly inadequate, contrary to the overwhelming weight of the evidence and based upon bias, passion and prejudice? The second is: Did the court err in granting instructions 3, 5 and 9 for the appellee in that said instructions are not supported by the evidence, are misleading, confusing and are not based on applicable legal principles?

8, 1965 discloses that in his opinion the appellant would not have any permanent disability. A second letter written July 9, 1966, however, reveals that 'On physical examination Mr. Rayborn was found to have moderate limitation of motion of the neck, especially on turning his head to the right. X-rays revealed severe hypotrophic arthritis of the cervical vertebrae, most marked in the 4th, 5th and 6th vertebrae. I am unable to state whether this condition is related to his automobile accident. However, his accident certainly could have aggravated such a condition if it previously existed. I believe this condition is permanent and it is doubtful if he will be able to return to work.' The appellant has not been able to return to work since the collision.

Insofar as the first error is concerned, the record discloses that appellant had a life expectancy of 10.1 years. The record is wholly silent as to what part of these years he would have been able to continue in his employment from which he derived a net income of $25 per week. The appellant suffered pain because of his injuries, and the injuries which he received augmented an arthritic condition and could have precipitated his ulcer. Because his hospitalization was not itemized, his hospital bills could not be introduced for the reason he underwent surgery for prostate and treatment for his ulcer and kidneys, but the fact nevertheless remains that some portion of his hospital expense and doctor bills were occasioned by the wreck.

We will consider the second error in conjunction with the first one, for the reason that involved in the second error is the question of comparative negligence. Instruction No. 3 is as follows:

The Court charges you that if you believe from the evidence in this case that the collision in this case was the sole proximate result of the negligence, if any, as defined in other instructions of Jasper Rayborn, then it is your sworn duty to find in favor of the defendant, David Freeman.

It is to be noted that this instruction specifically points out that any negligence of the appellant is to be defined in other instructions.

Instruction No. 5 is as follows:

The Court instructs the jury that if the jury should believe from the evidence in this case that some negligence if any of the plaintiff, Jasper Rayborn, caused or contributed to the causation of the collision, and if the jury should also believe from the evidence in this case that some negligence, if any, of David Freeman contributed to the causation of the collision, the jury may compare the negligence of the parties, if any, and reduce the damages awarded Rayborn in proportion to the degree of negligence, if any, attributable to him.

It is to be noted that this instruction likewise does not define or set out any acts which would constitute negligence on the part of the appellant or of the appellee. This instruction is erroneous because it is a roving instruction and does not define for the jury what facts would constitute negligence on the part of the appellant. Gore v. Patrick, 246 Miss. 715, 150 So.2d 169 (1963). This instruction constitutes reversible error unless there is some other instruction which furnishes the jury a guide as to what facts would constitute negligence on the part of appellant.

Instruction No. 9 is as follows:

For the defendant, Freeman, the Court charges you if you believe from the evidence in this case that the plaintiff, Rayborn, suddenly and without any warning turned his truck from said plaintiff's right hand lane of travel into said plaintiff's left hand lane of travel at a time when he, the said Rayborn, knew or in the exercise of reasonable care for his own safety and the safety of others traveling on the highway should have known of the close proximity of the Freeman automobile, then Rayborn was guilty of negligence, and if you further believe from the evidence in the case that such negligence, if any, on the part of Rayborn was the sole proximate cause of the collision in this case, then it is your sworn duty to find for the defendant, Freeman.

This instruction does in part set out specific acts of negligence on the part of the appellant. It is erroneous, however, because appellee was guilty of negligence and appellant's negligence could not be the sole cause of the accident either under the facts hypothesized in the instruction or under the undisputed fact that the appellee was passing the truck at an intersection or within one hundred feet thereof in violation of ...

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12 cases
  • Reuille v. Bowers
    • United States
    • Indiana Appellate Court
    • September 11, 1980
    ...direction except at a safe distance from places where hazards and dangers might be anticipated." (Emphasis supplied.) Rayborn v. Freeman (Miss.1968), 209 So.2d 193, 199. Accord: Young v. Blue Line Storage Co. (1950), 242 Iowa 125, 44 N.W.2d 391; and American Products Co. v. Villwock (1941),......
  • Miles v. Duckworth, 55124
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    • Mississippi Supreme Court
    • November 13, 1985
    ...of Trainer v. Gibson and Central Paper Co., Inc., 360 So.2d 1226 (Miss.1978); Jones v. Craft, 218 So.2d 727 (Miss.1969); Rayborn v. Freeman, 209 So.2d 193 (Miss.1968); Yelverton v. State, 191 So.2d 393 (Miss.1966); Gore v. Patrick and Capitol Tobacco and Specialty Co., 246 Miss. 715, 150 So......
  • Illinois Cent. Gulf R. Co. v. Gibbs
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    • Mississippi Supreme Court
    • May 13, 1992
    ...is in conflict with other correct instructions given the jury. McHale v. Daniel, 233 So.2d 764, 768 (Miss.1970); Rayborn v. Freeman, 209 So.2d 193, 197 (Miss.1968); Y & M.V.R.R. Co. Hawkins, 159 Miss. 775, 780-81, 132 So. 742 Without doubt, Instruction P-7A is a classic example of partisan ......
  • Dedeaux v. J.I. Case Co., Inc., 89-CA-1323
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    • Mississippi Supreme Court
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    ...such." Trainer v. Gibson, 360 So.2d 1226, 1228 (Miss.1978). See also, Jones v. Craft, 218 So.2d 727, 729 (Miss.1969); Rayborn v. Freeman, 209 So.2d 193, 196 (Miss.1968); Gore v. Patrick, 246 Miss. 715, 723, 150 So.2d 169, 171 Dedeaux's counsel gave no specific objection to the instruction, ......
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