Standard Oil Co. v. Crane
| Decision Date | 24 September 1945 |
| Docket Number | 35895. |
| Citation | 199 Miss. 69,23 So.2d 297 |
| Court | Mississippi Supreme Court |
| Parties | STANDARD OIL CO. et al. v. CRANE. |
Wallace & Greaves, of Gulfport, for appellants.
Parker & Busby, of Meridian, for appellee.
The appellee, as plaintiff, brought suit to recover damages arising out of the death of her husband in a collision between a car driven by him and a truck owned by the Standard Oil Company driven by its servant Davis, who is a joint defendant. From a verdict of $15,000 in plaintiff's favor, defendants appeal.
The first assignment of error relates to the refusal to grant a peremptory instruction to the defendants. We find no error here. The defendants' gasoline truck was proceeding north on a paved highway near the Town of McHenry. The accident happened early upon a foggy morning during the latter part of November 1941. Plaintiff's husband was driving a passenger car south and had as a passenger the wife of his employer. Both occupants of the car were instantly killed in a collision with the truck. According to all the eyewitnesses, the collision was caused by one of the vehicles striking a cow which was attempting to cross the highway from east to west, resulting in a sudden convergence of the two vehicles. There is sharp conflict whether the truck or the car struck the animal. There is evidence to support either theory. We need not elaborate this testimony. It was for the jury in its appraisal of the credibility of the witnesses in the light of the physical evidences to resolve this conflict.
Other assignments directed to the issue of liability involve the exclusion of certain evidence and the granting of certain instructions for the plaintiff. The following questions propounded to defendants' witness Hood are examples of those excluded by the court: 'Did you determine the place on the highway where the animal was struck by the vehicle?' 'Were you able to determine the place on the highway where the animal was standing or walking when it was struck?' 'I will ask you, from what you saw whether the animal was struck with great or slight violence?' We do not decide whether the witness, who was a member of the State Highway Patrol, was an expert in interpreting signs of collision. The questions standing alone would produce no helpful answers, and, unless followed by a request for an expert version, would be without point. Ordinarily the interpretation of physical circumstances is a function of the jury. The location of the cow when struck could be determined by one not an eyewitness only by the location and extent of the gory evidences of its dismemberment strewn along the highway. Exclusion of this testimony deprived the jury of no helpful aid to its own powers of deduction.
The giving of the following instruction for the plaintiff is assigned as error: 'The court charges the jury for the plaintiff that if you find for the plaintiff, it will be your duty to return your verdict for that sum which will be fair and reasonable compensation for all damages sustained by the plaintiff, if any, as shown by a preponderance of the testimony as a direct and proximate result of the negligence of the defendants in causing the injury and death of the decedent, A. B. Crane, Jr., and in calculating the amount of such damages you may take into consideration all of the evidence, if any, concerning the physical pain and mental anguish, if any, suffered by the deceased, A. B. Crane, Jr., between the time of the collision and the time of his death, if the jury should find that said A. B. Crane, Jr., was not killed instantly.' The targets of appellants' attack are (1) authorization to fix compensation for 'all damages sustained by the plaintiff'; (2) the implication that the defendants were negligent; and (3) an alleged failure to confine the applicable negligence to that set forth in the declaration. The instruction is predicated upon the condition that the jury first find for the plaintiff, a conclusion which could not be reached unless negligence was first adjudged, upon which issue other instructions fully set out the applicable tests. Nor do we find reversible error in the authorization to fix their verdict 'for that sum which will be fair and reasonable compensation for all damages sustained by the plaintiff, if any * * *.' Defendants procured an instruction invoking the doctrine of comparative negligence. This is not a case disclosing that both actors in the tragedy could be guilty of negligence causing the death of plaintiff's husband. We are without power here to charge plaintiff with contributory negligence in the face of the jury's implied acquittal of him by the only alternative verdict of guilt on part of defendants. Hence, the principle laid down in Graves v. Johnson, 179 Miss. 465, 176 So. 256, is not applicable. The instructions as a whole limited the elements of damage to those only which were claimed in the declaration and which were allowable by law. Some of the other instructions complained of would, if they stood alone, invite critical comment, but we find no reversible error in them. The verdict upon the issue of liability must therefore be affirmed.
Special attack, however, has been made upon the amount of the verdict, and upon certain instructions which authorized the jury to take into account allegedly improper elements of appraisement. The instruction quoted includes a warrant to 'take into consideration all the evidence, if any, concerning the physical pain and mental anguish, if any, suffered by the deceased A. B. Crane, Jr. between the time of the collision and the time of his death, if the jury should find that the said A. B. Crane, Jr., was not killed instantly.' An instruction requested by the defendants which would have excluded this element was refused. There was no substantial proof that the deceased retained consciousness after the collision. Such burden of proof remained upon the plaintiff. Witnesses who arrived at the scene shortly after the accident found plaintiff's decedent dead, with violent and crushing marks upon his head and one leg broken. The only testimony by which it is sought to meet the evidential burden is the circumstance that the deceased was found clutching a pencil in his hand. The argument of plaintiff's counsel, made a basis for a bill of exceptions, pressed the theory that deceased was trying to indite some final message. The testimony is at least equally consistent with a possession of the pencil prior to the wreck, and is otherwise insufficient to establish a persistent consciousness. It is true that in St. Louis & S. F. R. Co. v. Moore, 101 Miss....
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