Splain v. Hines

• Decision Date: 26 August 1992
• Docket Number: No. 89-CA-00055,89-CA-00055
• Citation: 609 So.2d 1234
• Parties: Charles SPLAIN, a Minor v. Florence HINES.
• Court: Mississippi Supreme Court

Page 1234

609 So.2d 1234

Charles SPLAIN, a Minor v. Florence HINES.

No. 89-CA-00055.

Supreme Court of Mississippi.

Aug. 26, 1992.

Rehearing Denied Dec. 3, 1992.

Crymes G. Pittman, Joseph E. Roberts, Jr., Cothren & Pittman, Jackson, for appellant.

Michael W. Ulmer, Frank A. Wood, Watkins & Eager, Janet McMurtray, Jackson, for appellee.

En Banc.

ROBERTSON, Justice, for the Court:

I.

This appeal of a civil action presents at its core questions regarding the range of tolerable levels of generality of expression in jury instructions, singly and in the aggregate. The case arises from a near tragedy--a young woman motorist struck and stopped upon a twelve-year-old boy who darted out from behind an apartment building. The boy sued, but the jury found for the motorist.

After an adverse verdict, the boy claimed the instructions too general and incomplete to guide the jury adequately. On post-trial proceedings, the Circuit Court stuck by its guns. We affirm.

II.

A.

The scene is the yard in front of Apartment Building No. 5, a "townhouse" at the Hickory Knoll Apartments in Ridgeland, Madison County, Mississippi. It is Friday afternoon, August 17, 1984, a little after 6:15 p.m. The main roadway entering the apartment complex lies immediately to the west of No. 5 and proceeds in a north-south direction.

Charles Anthony (Cas) Splain, Jr., born April 7, 1972, was then a bit over twelve years and four months old. Cas lived in a three-bedroom townhouse at Hickory Knoll with his mother and sister. On this Friday evening, Cas was outside in front of Apartment No. 5 with at least six other boys--Jason Lewis, age fifteen, and Jason's brother, Appolo Lewis, age twelve, Matt Garner, Hunter Maples, his little brother, Lance Maples, and a boy named Robert. They were on and near the front steps of the apartment. These are the "big boys." A few other "little kids" were playing around nearby. Rizik Baltagi, age fourteen, was near the little kids on his bicycle. All were hidden from view of northbound motorists entering the complex and approaching from behind the building.

Appolo saw Rizik "was messing with" the little kids. Cas and his friends intervened, and Cas and Rizik exchanged words. Rizik told Cas to shut up, then in an instant gave the boys the "finger," mounted his bicycle, and pedaled out into the street, fleeing southerly. Their integrity thus impugned, the big boys gave immediate chase. "We all got up and proceeded to run to get Rizik," Jason said. "The kids seemed to be running as fast as they could--like they had a purpose," added Pete Wilson, a UPS delivery man who happened to be sitting in his truck nearby. Wilson saw the pursuing pack grouped in an eight to ten foot circle as they hit the street.

Try as we might, we cannot be exactly sure what happened next. According to Jason, "Matt, Appolo and Cas entered the street at about the same time." The big boys emerged in a cluster from the apartment and hit the street "pretty much simultaneously," according to Wilson, who added, "There were some ahead of the others." What we do know is that a ruddy red Honda Civic automobile driven by twenty-one-year-old Florence Hines, moving northerly, met the racing youths. Matt cleared Hines' car and Appolo "jumped over the left side of the car" as it suddenly stopped. Lance tripped and fell, a few feet from the car, and Jason fell over him. Cas, who seems to have been the third boy to enter the street, was not so fortunate. Emerging from the point closest to and most obscured by the apartment building and shrubbery, Cas slipped and hit--and was hit by--the right front of Hines' car.

Florence Hines, then a recent Millsaps College graduate with a double major in psychology and business administration, worked in the Millsaps Admissions Office. She had lived in the apartment complex for a number of months. She had left work about 4:30 that Friday afternoon and had gone shopping at McRae's with a friend. She drove home alone and entered the main roadway entrance of the apartment complex a little after 6:15 p.m. Hines stopped at the mailboxes, got out of her car, and found in her box only an advertising circular which she ignored.

Hines got back into her car and at this point was some 128 feet from the point where her car eventually collided with Cas Splain. She was to the rear or south of Apartment Building No. 5, and her view of its front yard was obstructed by the building itself and by shrubbery which extended within a few feet of the street. A tree stood ahead of the building in the front yard. Hines started her car and proceeded northerly. She saw no one ahead. At some point, Rizik met Hines and pedaled past on her left, but she took no note. She knew, of course, there were children in Hickory Knoll and that many lived in and around the area she was approaching.

According to Hines,

All of a sudden, I was driving and the boys appeared and there was a thump and it was all so simultaneous that there wasn't any time to sit there and acknowledge that anything was happening. It was all over before it had even started.

Hines added that the boys were "coming down at an angle" and that "Cas Splain ran into the side of my car." Hines stopped instantly. According to fifteen-year-old Jason Lewis,

the car hit him and it rolled over him and his head struck, I believe, the right side of the car and Cas' body, his arms, legs were rolled up in the wheel, and when the car stopped, the woman got out of the car immediately and she came around the front and we were trying to tell her, back the car up because the car is in his chest.

Hines quickly got back in the car and backed it off.

Cas was shortly on his way to St. Dominic Hospital for treatment, which included an hour and fifteen minute surgery. Cas suffered injuries which appeared quite serious at the time and which kept him hospitalized some thirteen days. Happily, on November 4, 1985--just short of fifteen months later--treating physician Dr. Glenn C. Warren was able to pronounce Cas fully recovered, an opinion shared by Dr. Frank Briggs.

Cas Splain, who does still have a scar on his stomach, remembers nothing of the accident.

B.

On November 15, 1984, Charles Anthony Splain, Jr., by his mother and next friend, Cathy Rhodes (hereafter sometimes "Splain"), commenced this civil action by filing a complaint in the Circuit Court of Madison County, Mississippi, naming Florence Hines as defendant. The complaint charged Splain had suffered serious personal injuries in the August 17, 1984, accident and said these injuries were the direct and proximate result of Hines' negligence. Hines answered, admitting the accident but denying fault.

On June 21, 1988, the case was finally called for trial. The parties augmented the testimony with numerous photographic exhibits--Hines' ruddy red Honda Civic and the street leading past Hickory Knoll Apartment No. 5 were both well photographed. After considerable combat about jury instructions, of which we will have more to say later, the Court submitted the case to the jury, which returned a verdict: "We, the Jury, find for the Defendant."

After denial of the usual post-trial motions, Cas Splain now appeals to this Court.

III.

Splain first argues the Circuit Court erred when it refused to hold Hines at fault and liable for his damages as a matter of law. He presented the point at trial in a motion for partial directed verdict on liability at the conclusion of all of the evidence. Rule 50(a), Miss.R.Civ.P. He renewed the point thereafter with his motion for partial judgment notwithstanding the verdict. Rule 50(b), Miss.R.Civ.P.

We are often presented an appeal of such a point and have articulated our law and disclosed our bent of mind in cases only slightly less numerous than the sands on the beaches, to-wit:

The motion for J.N.O.V. tests the legal sufficiency of the evidence supporting the verdict. It asks the court to hold, as a matter of law, that the verdict may not stand. Where a motion for J.N.O.V. has been made, the trial court--and this Court on appeal--must consider all of the evidence--not just the evidence which supports the non-movant's case--in the light most favorable to the party opposed to the motion. The non-movant must also be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point so overwhelmingly in favor of the movant that reasonable men could not have arrived at a contrary verdict, granting the motion is required. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied and the jury's verdict allowed to stand.

See, e.g., Andrew Jackson Life Insurance Co. v. Williams, 566 So.2d 1172, 1177 (Miss.1990); Goodwin v. Derryberry Co., 553 So.2d 40, 42 (Miss.1989); Guerdon Industries, Inc. v. Gentry, 531 So.2d 1202, 1205 (Miss.1988); Stubblefield v. Jesco, Inc., 464 So.2d 47, 54 (Miss.1984); Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975). Our review is largely de novo. But see, Mississippi Farm Bureau Mutual Insurance Company v. Garrett, 487 So.2d 1320, 1328 (Miss.1986); City of Jackson v. Locklar, 431 So.2d 475, 478-79 (Miss.1983).

This Court has long been committed to the rule that, when a motorist is driving at a reasonable rate of speed under the circumstances, and is keeping a proper lookout ahead, he or she is not liable for injuries to a child who darts from behind a fence, parked car or other obstruction so suddenly that the motorist cannot reasonably stop or otherwise avoid injuring the child. See, e.g., Smith v. Alford, 245 So.2d 188, 189 (Miss.1971); Moseley v. Bailey, 193 So.2d 729, 731 (Miss.1967).

Notwithstanding this rule and our limited scope of review, Splain would have us hold Hines liable as a matter of law. We...