State Farm Auto Ins. Companies v. Davis, No. 2003-CA-01057-COA.

• Decision Date: 16 November 2004
• Docket Number: No. 2003-CA-01057-COA.
• Citation: 887 So.2d 192
• Parties: STATE FARM AUTO INSURANCE COMPANIES, as Subrogee of Sheila Barnes, and Sheila Barnes, Individually, Appellants, v. Dora DAVIS, Appellee.
• Court: Mississippi Court of Appeals

887 So.2d 192

STATE FARM AUTO INSURANCE COMPANIES, as Subrogee of Sheila Barnes, and Sheila Barnes, Individually, Appellants, v. Dora DAVIS, Appellee.

No. 2003-CA-01057-COA.

Court of Appeals of Mississippi.

November 16, 2004.

James "Paul" Clinton, Mobile, AL, attorney for appellants.

Michael Earl Keyton, Port Gibson, Attorney for appellee.

EN BANC.

BRIDGES, P.J., for the Court.

¶ 1. On September 2, 1999, Sheila Barnes and Dora Davis were traveling in opposite directions on old Highway 18 in Claiborne County. As Barnes approached, Davis executed a left turn across Barnes's lane of travel resulting in a collision. Barnes and State Farm Insurance Companies, as subrogee of Barnes, its insured, subsequently filed the present action against Davis seeking indemnification for damages paid as a result of Davis's alleged negligence.

¶ 2. The jury in the Circuit Court of Claiborne County returned a verdict in favor of Davis. State Farm and Barnes then filed a motion for judgment notwithstanding the verdict, but the motion was denied. Aggrieved by the decision, they appeal claiming said denial was in error.

¶ 3. Upon thorough review of the record, we find the jury's verdict to be contrary to the overwhelming weight of the evidence. Accordingly, we reverse and render.

LAW AND ANALYSIS

¶ 4. Considering the material facts surrounding the collision and all rational inferences possibly drawn therefrom, the verdict rendered by the Claiborne County jury, absolving Davis of any negligence whatsoever, absolutely defies logic. The evidence presented at trial established that Davis was negligent as a matter of law for failing to maintain a proper lookout and to yield the right-of-way. I begin with a brief recital of the applicable law.

¶ 5. The long-standing law in Mississippi declares that the province of the court extends to questions of law while that of the jury extends to questions of fact. Cantrell v. Lusk, 113 Miss. 137, 144, 73 So. 885, 886 (1916). Actions in negligence are generally regarded as founded in fact, and for that reason the legislature mandated that "[a]ll questions of negligence and contributory negligence shall be for the jury to determine." Miss.Code Ann. § 11-7-17 (Rev.2004); Philco Distrib., Inc. v. Herron, 195 So.2d 473, 477 (Miss.1967). However, Rule 50 of the Mississippi Rules of Civil Procedure is a device by which the court is authorized "to enforce the rules of law by taking away from the jury cases in which the facts are sufficiently clear that the law requires a particular result." M.R.C.P. 50, cmt. The Mississippi Supreme Court has explained that the jury is to determine the issue of negligence, "unless the doing of the act which caused the injury complained of is not in dispute or conclusively appears from the evidence, and no inference except that of negligence or of no negligence can be justly drawn therefrom, in which event the question is for the determination of the trial judge." City of Greenville v. Laury, 172 Miss. 118, 122, 159 So. 121, 122 (1935). The record reveals that there was no issue of fact and conclusively establishes that Davis was negligent; therefore, the trial judge should have decided the case.

¶ 6. The only fact that could be even argued as in dispute arises from a variance in testimony between that of Davis and Barnes regarding the actual point of impact in relation to a curve in the road. The precise location, however, is inconsequential to the outcome of the case, and the only definitive, relevant fact gained from their testimony in this regard is that Barnes came around a curve shortly before impact.

¶ 7. The evidence before the jury clearly proved negligence by Davis. To maintain an action in negligence, the plaintiff has the burden of proving that (1) he was owed a duty by the defendant; (2) defendant's conduct was a breach of that duty; (3) defendant's breach was the proximate cause of injury to plaintiff; and (4) plaintiff suffered damage as a result of injury. Hadad v. Lockeby, 176 Miss. 660, 669, 169 So. 691, 693 (1936). The Mississippi Supreme Court explains that negligence is "the result of the failure to perform a duty, therefore actionable negligence cannot exist in the absence of a legal duty to an injured plaintiff," and whether such duty exists is a question of law to be decided by the court. Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473, 475 (Miss.1967) (citations omitted). Davis's duty was statutorily imposed. The Mississippi legislature codified the "Rules of the Road" for the purpose of protecting those who use the roads, thereby establishing that every motorist owes a duty to every other traveler to exercise reasonable care to prevent injury and to operate his motor vehicle in accordance with the statutes. Miss.Code Ann. §§ 63-3-1 to XX-X-XXXX (Rev.2004); Aycock v. Burnett, 157 Miss. 510, 128 So. 100 (1930). Failure to act in accordance with the statutes does not in and of itself establish negligence; however, violation of the statutes will be generally found to constitute "negligence per se" if (1) the plaintiff was in the class of persons the statute was designed to protect, and (2) the injury the plaintiff sustained was the kind of injury the statute was designed to prevent. Byrd v. McGill, 478 So.2d 302, 304-05 (Miss.1985).

¶ 8. The specific statutory duties with which Davis was required to comply, as applicable to the facts at bar, include maintaining a proper lookout, as codified in Miss.Code Ann. § 63-3-707 (Rev.2004), and yielding the right-of-way, as codified in Miss.Code Ann. § 63-3-803 (Rev.2004). These duties are implicated when a motorist, inter alia, crosses a lane of opposite flowing traffic and were accordingly designed to protect the motorists whose lanes are being crossed. Davis was crossing Barnes's lane of traffic, so Barnes certainly falls in that class of protected persons. The duties were designed to facilitate safe passage across opposing lanes, thereby avoiding collisions. Barnes was injured when she collided with Davis, so Barnes certainly suffered the particular injury the statute was designed to prevent. As a result, Davis was per se negligent. Accordingly, a verdict should have been returned in favor of Barnes because the violation of the statute by Davis was the unequivocal proximate cause of Barnes's injury.

¶ 9. However, even if Barnes's collision with Davis was not to be considered the product of per se negligence by Davis, the facts presented at trial unconditionally demonstrate that the collision was the result of Davis's negligence. As previously noted, Davis, in executing a left-hand turn, owed Barnes the statutory duties of maintaining a proper lookout and yielding the right-of-way. An abbreviated analysis of Mississippi's case law, regarding conduct required to satisfy these duties, makes Davis's failure fully evident and is as follows: Shideler v. Taylor, 292 So.2d 155 (Miss.1974) (It is duty of an automobile driver to see that which is in plain view, open and apparent, to take notice of obvious danger, and to be on alert so as to avoid collision with objects, vehicles, and others using highway.); Campbell v. Schmidt, 195 So.2d 87 (Miss.1967) (A motorist is charged with seeing what he should have seen.); Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 141 So.2d 226 (1962) (A motorist has a duty to keep his automobile under control and to keep a lookout in the direction in which he is proceeding, and he must at all times be vigilant and anticipate and expect the presence of others and cannot assume that the way is clear.); Tippit v. Hunter, 205 So.2d 267 (Miss.1967) (The driver of an automobile is chargeable with the knowledge of all conditions which would be obtainable by the exercise of his faculties, and it is his duty to see that which is in plain view or open and apparent and to take notice of obvious dangers.); Sohio Petro. Co. v. Fowler, 231 Miss. 72, 94 So.2d 350 (Miss.1957) (A motorist is under a duty to keep proper lookout and be on alert for other vehicles using highway and a statutory duty not to turn her vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety, and then only after giving appropriate signal by hand, arm, or signal device in event any other vehicle might be affected by such movement.); Flynt v. Fondren, 122 Miss. 248, 84 So. 188 (1920) (A driver of a motor vehicle must keep a lookout for other vehicles and persons and keep his machine under control and cannot assume that the road is clear but must under all circumstances and at all times be vigilant and anticipate and expect the presence of others, and if he fails to do so, he is negligent.).

¶ 10. Davis maintains that she kept a proper lookout before turning across Barnes's lane. This contention, however, is supported by nothing other than her self-serving testimony, which is contradicted by the facts of the case. Davis's testified on direct as follows:

Q. And [Ms. Davis] were you paying attention?

A. Yes.

Q. How would you describe yourself as a driver?

A. Good. Careful.

Q. Is that all of the time or some of the time?

A. That's all of the time because my life is in danger just like everybody else coming down the road.

Q. Now, prior to making that left, did you see Sheila Barnes?

...

A. No, I didn't.

Q. Were you looking for a vehicle coming from that direction?

A. Yes.I — it's a curve.

Q. Would you — were you paying extra attention to that?

A. Yes.

Q. And what happened after you began making that left?

A. All of a sudden, something hit my car, a car hit me. Well, she hit my car.

¶ 11. In conjunction with the duties of maintaining a proper lookout and yielding the right-of-way, Davis was additionally "under a duty to use care commensurate with all the circumstances and the danger reasonably to be anticipated." Freeze v. Taylor, 257 So.2d 509, 512 (Miss.1972). In her testimony, Davis alluded to the fact that she was extra careful in executing this particular...