Tippit v. Hunter

• Decision Date: 11 December 1967
• Docket Number: No. 44640,44640
• Citation: 205 So.2d 267
• Parties: Mrs. Ida G. TIPPIT v. Mrs. Jane HUNTER.
• Court: Mississippi Supreme Court

Page 267

205 So.2d 267

Mrs. Ida G. TIPPIT v. Mrs. Jane HUNTER.

No. 44640.

Supreme Court of Mississippi.

Dec. 11, 1967.

Hunter M. Gholson, Columbus, for appellant.

Stennis & Kenneday, Macon, for appellee.

RODGERS, Justice:

This is a damage suit for personal injuries sustained in a motor vehicle collision. The accident occurred September 23, 1963, on a paved highway running east and west between Macon, Mississippi and Memphis, Alabama. Mrs. Jane Hunter was operating a 1959 Chevrolet, the property of Bobby Jack Hunter. She was traveling in a westerly direction. Mrs. Ida G. Tippit was operating a 1962 Falcon automobile and traveling in an easterly direction. The automobiles met in a 'head-on' collision. The drivers of these two automobiles were the only eyewitnesses, and each claimed that the accident occurred in her lane of travel. The sheriff of Noxubee County was called to the scene. He made a careful examination of the skid marks, the positions of the automobiles, and other significant facts including measurements. Several pictures were taken and offered in evidence, but only one is part of the record on appeal. Other witnesses went to the scene of the accident and testified before the trial jury.

The plaintiff, Mrs. Ida G. Tippit, suffered serious bodily injuries. She received a compound fracture of her left humerus; a compound fracture of her left tibia; a compound fracture of the right patella; comminuted fracture of the right calcaneus; a fracture of her left phalanx; fracture of her ribs; punctured left lung from fractured ribs; multiple lacerations; contusions; abrasions; and internal injuries. She was hospitalized for a month and was confined to a wheel chair for several months. She was finally able to walk by the use of a walker which she used until February, 1964. The accident caused the plaintiff permanent partial disability by the loss of the use of her legs and arms and by the removal of part of her kneecap, as well as a permanent injury to her lungs, making her incapable of full chest expansion and normal breathing. The evidence shows that the plaintiff suffered continual pain and periodic, severe, and excrutiating pain and suffering from the time of the accident up to and including the trial. The plaintiff has suffered serious and permanent injuries as a result of the accident.

The jury accepted the plaintiff's theory of the law suit, and returned a verdict in favor of Mrs. Tippit in the sum of $2000. She made a motion for a new trial upon the ground that the damages awarded by the verdict of the jury were inadequate to compensate the plaintiff for the serious injuries sustained as a result of the accident growing out of the negligence of the defendant, Mrs. Jane Hunter.

The appellee has cross-appealed, and states that she 'is not particularly concerned about the affirmation . . . of the judgment rendered in the court below * * *. However, she feels strongly that, if the case is reversed, it should be reversed in toto.'

A careful reading of the record reveals that the trial in this case is a typical jury case. The jury has resolved the issue of negligence in favor of the plaintiff, and we cannot say that the verdict is contrary to the facts shown by the testimony. Moreover, it is apparent from the foregoing statement of facts that the plaintiff has suffered injuries entitling her to much greater damages than were accorded by the jury. The case must therefore be reversed, so that a new trial may be had because of the inadequacy of the damages awarded. See Johnson v. Wilkinson, 254 Miss. 475, 182 So.2d 224 (1966); Whatley v. Delta Brokerage & Warehouse Co., 248 Miss. 416, 159 So.2d 634 (1964); Ladner v. Merchants Bank & Trust Co., 251 Miss. 804, 171 So.2d 503 (1965); Dunn v. Butler, 252 Miss. 40, 172 So.2d 430 (1965).

Since this case must be reversed, the next question to be determined is whether or not this case should be reversed for a new trial on all issues, or affirmed as to liability and reversed so that a new trial may determine adequate damages.

The appellee, the cross-appellant, contends on cross appeal that the trial court committed eight reversible errors which were prejudicial to her case, so that she is now entitled to a new trial, free of error. She says that (1) plaintiff's instructions 2, 3 and 4 were erroneous; (2) the trial judge's remarks in the presence of the jury were erroneous; (3) evidence of a conversation between appellant and her doctor admitted over objection was error; (4) insurance was allowed to be injected into the trial over the objection of the defendant; (5) certain pictures shown to the jury were inadmissible in evidence; (6) appellant's husband was permitted to testify that he discussed insurance with appellee's husband over the objection of the appellant; (7) appellant's husband was permitted to testify to damages not set out in the declaration; (8) the trial court erred in failing to declare a mistrial when the insurance issue was injected into the trial by the appellant.

Considering these assignments of error in order above set out, we begin at the end of the trial with the instructions.

The appellee, cross-appellant, complains that the instruction granted the appellant, Mrs. Ida G. Tippit, permitted the jury to return a verdict for 'all' the damages suffered by the appellant, when in fact, appellant did not sue for hospital and medical expenses. Appellee, cross-appellant, points out that one of the instructions permitted the appellant to recover for 'loss of time and loss of earning capacity,' and there is no evidence in the record as to these items. All instructions on damages apparently had little effect on the verdict of the jury, since the verdict was grossly inadequate to compensate the appellant for the serious injuries sustained; moreover, the evidence does show that appellant lost capacity to earn. It is therefore obvious that the instructions were not prejudicial to the appellee, cross-appellant.

We find no reversible error in the instructions granted the appellant on the issue of negligence; moreover, instruction number 7 granted the appellee, cross-appellant, is almost the same instruction as number 2 granted the appellant. Instruction number 8 for the appellee, cross-appellant, is almost the same as appelant's instruction number 4. Defects in an instruction are not prejudicial error for which a case will be reversed where all instructions together fairly announce the law applicable to the case. Jackson Yellow Cab Co. v. Alexander, 246 Miss. 268, 148 So.2d 674 (1963).

The fourth assignment of error is not well taken, because the mere fact that one of the parties testified that she kept a lookout 'down the road in front of me' did not prevent the court from granting an instruction as to her failure to keep a lookout. This is especially true since appellee, Mrs. Hunter, testified that 'just out of nowhere came the Ford Falcon.' The driver of an automobile is chargeable with knowledge of all conditions which would be obtainable by the reasonable exercise of his faculties. It is his duty to see that which is in plain view or open and apparent and to take notice of obvious dangers. He must be regarded as having seen what he would have necessarily seen had he been looking, and if an automobile driver fails to reasonably observe that which was apparent and within clear view, the jury can reasonably determine from the circumstances that he was not keeping a proper lookout. Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487 (1941); Gray v. Felts, 241 Miss. 599, 131 So.2d 454 (1961); Kettle v. Musser's Potato Chips, Inc., 249 Miss. 212, 162 So.2d 243 (1964); Babbitt, Motor Vehicle Law § 2257 (4th ed. 1933).

The appellee, cross-appellant, complains that the trial judge told the jury that 'she had pulled as far to the right as she could.' This statement came about on cross-examination of the plaintiff, appellant, by the attorney for the appellee, cross-appellant.

Appellee, cross-appellant, cites Dickinson v. Koenig, 242 Miss. 17, 28, 133 So.2d 721, 725 (1961), as authority for this ground of objection. In that case the judge expressed his opinion on the common knowledge as to the weight of the evidence. An objection was made, and he attempted to correct his error by requesting the jury to disregard it, but then he said: 'I don't think that is material one way or the other.' On appeal this Court recognized the error and stated: 'We think that when all the questions and rulings are considered as a whole that it was error for the trial judge to make the comments, but we do not think that it constitutes reversible error.'

In Haynes-Walker Lumber Company v. Hankins, 141 Miss. 55, 105 So. 858 (1925), in which the court made a similar statement, this Court held on appeal that the error was harmless. See also 53 Am.Jur. Trial § 79 (1945).

In the instant case the Judge was not making a statement on the weight of the evidence. He was merely attempting to refresh the defense attorney's recollection as to what the witness had said. The jury heard all that had preceded and...