Stewart v. White
| Decision Date | 10 March 1969 |
| Docket Number | No. 45231,45231 |
| Parties | Annette H. STEWART, Defendant/Appellant, v. Percy WHITE, Plaintiff/Appellee. |
| Court | Mississippi Supreme Court |
Sullivan, Dunbar & Smith, David Hunt, Clarksdale, for appellant.
Harvey T. Ross, Clarksdale, for appellee.
This is an appeal from a judgment on a jury verdict in the amount of $10,000 awarded to the plaintiff, Percy White, appellee here, in a personal injury suit tried in the Circuit Court of Coahoma County. We affirm the judgment of the lower court and write this opinion so that we may discuss an instruction, hereinafter detailed, which we observe is now used quite frequently as a general instruction without particular regard to the evidence adduced at trial. It is:
The Court instructs the jury for the plaintiff that it is the duty of any one to drive or operate a motor vehicle over and along any public highway at no greater rate of speed than is reasonable and prudent, having due regard to the traffic and use of the highway or so as to endanger the life and limb of any person; that the driver of a motor vehicle does not have the right to a clear and unobstructed highway, but must constantly keep the automobile being then and there driven by him under control, must continue on the alert, must keep a proper lookout ahead and anticipate the presence of other persons and vehicles upon said highway and must, at all times, drive his motor vehicle at such a rate of speed as to enable him to avoid injury to such persons, when they come or, by the exercise of ordinary care, would come within his vision or under his observation.
The appellant contends that this instruction is erroneous in that it is a 'roving' instruction as it concerns itself abstractly with three areas of negligence, improper speed, failure to have the vehicle under control, and improper lookout, without supporting evidence of any of them. She further contends the instruction advises the jury that the operator of a vehicle must at all times driver his motor vehicle at such a rate of speed as to enable him to avoid injury to anyone who might come within the vision of the operator. This in effect, she argues, makes the driver of a vehicle absolutely liable to anyone under any circumstances for any injury occasioned by the use of the automobile; in short, an insurer.
The appellee countered the criticism of this instruction by showing that it was taken verbatim from Williams v. Moses, 234 Miss. 453, 458, 106 So.2d 45, 47-48 (1958), from which case he quotes the following as being applicable here:
We think the plaintiff's instruction stated the correct rule which is applicable in cases of this kind. Almost this identical instruction was approved by this Court in the case of Hadad v. Lockeby, 176 Miss. 660, 668, 169 So. 691, and the rule announced therein is in line with many holdings of this Court. This instruction appears as Section 823 of Alexander's Mississippi Jury Instructions. Beginning with Ulmer v. Pistole, 115 Miss. 485, 76 So. 522, and continuing through a long line of cases this Court has adhered to the rule in the above plaintiff's instruction. * * *
He contends additionally that 'speed' is basically motion and that the jury had the right to consider the speed of the appellant's automobile whether it was five, ten, or fifteen miles per hour at the particular time and place of the accident in determining whether or not speed was a factor in finding liability. He also argues that the long use of this instruction as set forth in Williams, supra, and its use in other cases, which has been approved by this Court, constitutes an approval of the same as being a correct statement of the duties owed to a pedestrian by the driver of a motor vehicle.
The record reflects that the plaintiff was injured at approximately 12:30 p. m. on May 16, 1967, as the result of being struck by the appellant's automobile as he attempted to cross Third Street in the city of Clarksdale. The day was clear and the pavement dry. The appellee attempted to cross Third Street at a point near the city hall when he was struck and injured. The accident occurred near the center of the block and not at an authorized intersection or crosswalk. The operator of the vehicle was driving at a speed not in excess of fifteen to twenty miles per hour. The greater weight of the testimony indicates that the left hood, or left front fender, of the car struck the plaintiff. The evidence is in...
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