Shields v. Easterling, 92-CA-00839-SCT

• Decision Date: 20 June 1996
• Docket Number: No. 92-CA-00839-SCT,92-CA-00839-SCT
• Citation: 676 So.2d 293
• Parties: Flora SHIELDS v. C.W. EASTERLING.
• Court: Mississippi Supreme Court

Page 293

676 So.2d 293

Flora SHIELDS v. C.W. EASTERLING.

No. 92-CA-00839-SCT.

Supreme Court of Mississippi.

June 20, 1996.

John S. Knowles, III, Brantley & Knowles, Jackson, Eugene C. Tullos, Tullos & Tullos, Raleigh, for appellant.

Eve Gable, Bryan Nelson Randolph & Weathers, Hattiesburg, Stanley P. Buckley, Hattiesburg, for appellee.

Before DAN M. LEE, C.J., and BANKS and MILLS, JJ.

MILLS, Justice, for the Court:

This appeal arises out of a single car accident that occurred on an Interstate Highway near Mattoon, Illinois. Flora Shields was a passenger in a pick-up truck driven by C.W. Easterling (Easterling). Shields filed a suit in Mississippi. The case went to trial on March 21, 1990. The jury awarded a verdict for the defendant. Following the denial of posttrial motions, Shields perfected her appeal to this Court.

FACTS

On November 4, 1986, Shields began a trip to Chicago, Illinois, with Easterling, who was driving a truck owned by Clyde Kirk. Kirk was a passenger in the vehicle at the time of the accident. The truck was pulling a U-Haul trailer that contained most of Shields's earthly possessions.

The journey commenced with Shields sitting between Kirk and Easterling. In the early morning hours of November 25, the truck had passed into Illinois. It was cold that morning, approximately nineteen to twenty degrees Fahrenheit. ¹ It was before six o'clock, still dark. No precipitation was falling. As the truck passed over a bridge, Easterling, who was driving, hit a patch of ice on a bridge, causing the truck to slip. Kirk told Easterling to "break it down, man, because the bridges are icing over." Easterling slowed his speed to approximately forty to forty-five miles per hour and the journey continued without mishap. Unfortunately, about ten to fifteen miles down the road, while driving in the right-hand lane, Easterling hit another patch of ice on a bridge. The truck began to fishtail, the truck and trailer jackknifed, then flipped, and finally came to rest in the median. The accident left Shields pinned in the truck, until Easterling and Kirk removed her through the windshield.

Kirk testified, that in his opinion, Easterling had proper and reasonable control over the car given the circumstances; that Easterling had slowed his rate of speed down after first encountering ice on the prior bridge where no mishap had occurred; and finally that a slower rate of speed would not have prevented the accident. Kirk also testified that Shields had her head reclined back with her eyes closed at the time of the accident. He admitted that he was unsure whether Shields was asleep.

Shields testified that in her opinion Easterling was driving too fast under the conditions. Because he was driving too fast, he lost control, causing the accident. ² However, Shields admitted that she had never driven a motor vehicle in her life, except for "fooling around." She had never possessed a driver's license. She did not know the speed of the vehicle at the time of the accident and did not look at the speedometer. Since it was dark, she saw no ice on the road. She was unaware of the truck hitting a patch of ice on the earlier bridge. Furthermore, she testified that Easterling had proper control of the car until the time the accident occurred.

The jury returned a verdict for the defendant.

LAW

Shields's first two assignments of error deal with the issue of improper jury instructions.

On appeal, this Court does not review jury instructions in isolation; rather, they are read as a whole to determine if the jury was properly instructed. Accordingly, defects in specific instructions do not require reversal where all instructions taken as a whole fairly--although not perfectly--announce the applicable primary rules of law. However, if those instructions do not fairly or adequately instruct the jury, this Court can and will reverse.

Peoples Bank and Trust Co. v. Cermack, 658 So.2d 1352, 1356 (Miss.1995) (citations omitted).

I.

THE TRIAL COURT ERRED IN FAILING TO GRANT PLAINTIFF'S

PEREMPTORY INSTRUCTIONS P-1 OR P-9.

A.

Instruction P-1

Shields's first complaint is that the trial court denied plaintiff's instruction P-1 which reads: "The Court instructs the jury to find for the plaintiff against the defendant, C.W. Easterling."

The evidence shows there was a jury question as to whether Easterling's rate of speed caused the accident in question. Shields's testimony was that the rate of speed at which Easterling was driving caused the accident in question. Kirk's testimony comes to the opposite conclusion. Shields also contends that Easterling's actions, as a matter of law, prove a lack of reasonable control over the truck as evidenced by the fact that an accident occurred. On this issue, as well, Kirk's lay opinion testimony reaches the opposite conclusion.

What the Shields appears to argue is that because an accident occurred involving a single car that, by that fact, Easterling is negligent as a matter of law. This is not so. It bears repeating that in a negligence case the plaintiff has the burden to prove the defendant breached a duty causing an injury. Shields's theory, in essence, creates a form of strict liability. She argues that where an accident occurs involving no other vehicle, the driver of the vehicle is liable as a matter of law. The trial court did not err in refusing Shields's peremptory instruction.

B.

Instruction P-9

Next Shields's contends that the trial court erred in refusing to instruct the jury that she was not negligent, as a matter of law. The instruction in question reads: "The Court instructs the jury that the plaintiff was not guilty of negligence as a matter of law."

The purpose of this instruction is unclear. On appeal, Shields cites no cases in support of her position. Considering the issue, we hold it without merit since the defendant did not request a comparative negligence instruction which placed Shields's action, or lack thereof, at issue.

II.

THE TRIAL COURT ERRED IN GRANTING DEFENSE INSTRUCTIONS D-3,

D-15 AND D-16.

A.

Instruction D-3

Instruction D-3 reads:

The Court instructs the Jury that in the course of human events, and the progress of civilization, unavoidable accidents occur, and it is recognized by law that unavoidable accidents do indeed occur and as a result of which people are injured when there is no negligence, and in this case, if the Jury believes from a preponderance of the evidence that the accident in question and the resulting injuries, if any, were the result of an unavoidable accident and not of negligence on the part of Defendant, C.W. Easterling, then it shall be your sworn duty to return your verdict for the Defendant.

At the trial, the original instruction included the words "simple accident." The trial court suggested taking out the word "simple" and replacing it with "unavoidable." The plaintiff's only argument was to object "for the record."

Shields submits that the Supreme Court of Mississippi has never accepted an unavoidable accident instruction. She further contends that the term is useful only to suggest that an accident had a cause other than the defendant's lack of due care. Petition of M/V Elaine Jones, 480 F.2d 11 (5th Cir.1973), opinion amended by, Canal Barge Co., Inc. v. Griffith, 513 F.2d 911 (5th Cir.1975), overruled on other grounds by Sea-Land Services v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974) and Johnson v. Penrod Drilling Co., 510 F.2d 234 (5th Cir.1975). Shields submits the closest this Court has come to recognizing such a defense is the "Act of God" defense. This defense applies where an injury is attributable solely to natural cause without any human intervention, which the exercise of prudent care could not have prevented. See City of Jackson v. Brummett, 224 Miss. 501, 80 So.2d 827 (1955).

Shields did not put this objection to the trial court in any specific meaningful manner. Thus, the trial judge had no opportunity to rule on it. Collins v. State of Mississippi, 368 So.2d 212, 212 (Miss.1979). Thus, this Court is barred from reviewing this issue.

Alternatively, the issue is without merit. This Court previously dealt with a very similar instruction where we held a proper reading of the instruction "correctly inform[ed] the jury that its verdict should be for the defendant if it should find from the evidence that the defendant had been guilty of no negligence which had proximately caused or contributed to the injury [of the plaintiff]." McCollum v. Randolph, 220 So.2d 310, 312 (Miss.1969). The defendant gives proper emphasis as shown below:

in this case, if the Jury believes from a preponderance of the evidence that the accident in question and the resulting injuries, if any, were the result of an unavoidable accident and not of negligence on the part of Defendant, C.W. Easterling, then it shall be your sworn duty to return your verdict for the Defendant.

If we were to reach the merits we would find this instruction, when properly read, is not erroneous.

Finally we note, Instructions C-1 and P-4 inform the jury that instructions shall be read and considered together. Numerous other instructions properly informed the jury on the issue of negligence. Even if we were concerned about our conclusions above, the result would be no different. Since "all [the] instructions taken as a whole fairly--although not perfectly--announce the applicable primary rules of law," we conclude that any perceived error was harmless. Peoples Bank and Trust Co. v. Cermack, 658 So.2d 1352, 1356 (Miss.1995) (citations omitted).

B.

Instruction D-15

Instruction D-15 reads:

The Court instructs the Jury that if you find from a preponderance of the evidence in this case that on or about November 25, 1986, the Defendant, C.W. Easterling was operating a vehicle northerly on Route 45 near Mattoon, Illinois, in the right-hand or easternmost lane of northbound traffic, and that at the same place and time the Plaintiff, Flora Shields was riding...