Vines v. Windham

Decision Date31 August 1992
Docket NumberNo. 90-CA-0750,90-CA-0750
PartiesHattie VINES and John Vines v. Jon WINDHAM.
CourtMississippi Supreme Court

J. Mack Varner, Varner Parker Sessums & Akin, Vicksburg, William R. Lancaster, Ramsey & Sheldon, Mobile, for appellants.

William M. Dalehite, Jr., Michael F. Myers, Steen Reynolds Dalehite & Currie, Jackson, for appellee.



This appeal arises from a garden-variety automobile accident and presents the question whether there was evidence such that the Circuit Court correctly submitted to the jury the issue of the plaintiff Hattie Vines' contributing negligence. Rejecting the appellee's contention that the plaintiffs failed to properly preserve this issue, we find that the trial court erroneously instructed the jury regarding Hattie Vines' alleged negligence.


The accident occurred in Vicksburg, Mississippi, where Halls Ferry Road interchanges with Interstate Highway 20. Halls Ferry Road is a level, four-lane, divided roadway with a grassy median strip running north and south. It crosses I-20 via an overpass, its northbound lanes leading into Vicksburg. Westbound traffic on I-20 must exit to the right and ascend a ramp to Halls Ferry Road. The speed limit for Halls Ferry Road traffic is forty miles per hour.

At approximately 7:40 a.m. on the morning of September 22, 1986, Jon E. Windham, 44, was employed at the Waterways Experiment Station and was on his way to work. Windham was proceeding westerly on I-20 and veered to his right up the exit ramp at Halls Ferry Road and came to a stop at the stop sign, intending to turn left and proceed southerly to his place of employment. Some 200 yards to Windham's right were traffic signals controlling traffic at another intersection. One making such a left turn had to cross the two northbound lanes, then the median area, then turning to the south. Windham had an unobstructed vision to his left between 200 and 250 yards to the crest of the Halls Ferry overpass crossing I-20. He witnessed heavy morning, rush hour traffic northbound on Halls Ferry Road heading into Vicksburg.

Windham remained stopped for a short period of time and then noticed a northbound pickup truck come to a stop in the inside, westernmost of the two northbound lanes of Halls Ferry Road. The driver of the pickup truck, Doug McMichael, stopped out of regard for the traffic ahead of him backed up by the red signal light. McMichael stopped just short of the crossover for vehicles such as Windham's. He saw Windham sitting at the stop sign, obviously intending to cross over and turn left southbound. McMichael made a hand signal to Windham to come across. Windham proceeded and a second later, the front left side of his vehicle near his left front tire struck a vehicle driven by Hattie E. Vines, age 32.

In due course, Vines and her husband, John M. Vines, Jr., commenced this civil action by filing their complaint in the Circuit Court of Warren County, Mississippi. The Vines' complaint stated a conventional personal injury tort action, charging Windham with negligence and demanding damages for temporary and permanent injury, medical expenses, loss of services, and the like. Windham answered and charged Hattie Vines was negligent as well. In due course, the Circuit Court submitted the case to the jury on all issues, including comparative negligence, whereupon the following verdict was returned:

We the jury determined that both the plaintiff and the defendant were both negligent.

We award $3500 to Mr. John Vines.

We award $20,000 to Mrs. Hattie Vines.

On April 25, 1990, the Circuit Court entered judgment on the verdict.

The Vines thereafter moved for a new trial, or, in the alternative, for an additur, arguing principally that the court had erred when it submitted to the jury the question of whether Hattie Vines was contributorily negligent. The Circuit Court denied the motion. The Vines now appeal to this Court.



The Vines present but a single issue for review: whether there was evidence legally sufficient to undergird the jury's finding that Hattie Vines was contributorily negligent. Windham tells us the point was not procedurally preserved at trial. He argues first it was the Vines who requested and had submitted the issue of comparative negligence and, further, that the Vines made no objection to his instructions regarding the proferred particulars on Hattie Vines' negligence.

The record reflects an altogether different scene. Once defendant Windham rested, the Vines moved for a directed verdict on Windham's liability and expressly asked the Court to hold on the evidence that Windham's negligence (which was never seriously contested) was the sole proximate cause of the accident. The Vines moved as well for a directed verdict on Windham's tendered issue of comparative or contributory negligence. The Circuit Court held this "a jury question" and denied the motion. This done, the Vines--at least for the moment--preserved the point. See Rule 50(a) and (b), Miss.R.Civ.P. Their further action regarding jury instructions calls to mind our settled rule that, once a timely and proper objection or motion is made, a party does not waive the point for appeal by thereafter respecting the court's ruling and trying to make the best of the predicament in which it has placed him. See, e.g., McDaniel v. Ritter, 556 So.2d 303, 314 n. 10 (1989); Stong v. Freeman Truck Line, Inc., 456 So.2d 698, 711 (Miss.1984); Home Insurance Co. of New York v. Dahmer, 167 Miss. 893, 901, 150 So. 650, 652 (1933); cf. McGee v. State, 569 So.2d 1191, 1194 (Miss.1990).

Windham says particularly that the Vines have waived their present point by their requested instruction P-5 which states:

The Defendant claims that Hattie Vines was also negligent and that her negligence was a proximate cause or proximate contributing cause of the accident. The Defendant has the burden of proving this claim by a preponderance of the evidence. If the Defendant fails to prove that Hattie Vines was negligent, or that the negligence, if any, of Hattie Vines, was a proximate cause or a proximate contributing cause of the accident, then you may not consider such negligence of Hattie Vines, if any, in assessing damages, if you return a verdict for the Plaintiffs.

This instruction merely accepts the circuit court's refusal to strike the comparative negligence defense and explains to the jury that Windham had the burden on this issue, telling the jury as well what it should do if it found Windham failed to carry that burden.

Windham also points us to his instruction D-16 and says the Vines accepted it. Instruction D-16 reads as follows:

The Court instructs the jury that Hattie Vines, as the driver of her vehicle travelling on Halls Ferry Road, Vicksburg, Mississippi, immediately prior to and at the time of the accident, was under a duty to exercise ordinary and reasonable care while operating her vehicle, to drive at a speed which was reasonable and prudent under existing conditions and to keep her vehicle under control. If you find from a preponderance of the evidence that Hattie Vines was not driving at a reasonable and prudent rate of speed in view of existing conditions or that she failed to keep her car under control, then Hattie Vines was negligent. And if you further find from a preponderance of the evidence that the sole proximate cause of the accident and injuries to Hattie Vines was her own negligence, you must return your verdict in favor of the Defendant, Jon Windham.

This instruction itemizes the possible bases for Hattie Vines' negligence, to-wit: that she was not driving at a reasonable and prudent rate of speed under the circumstances and that she failed to keep her vehicle under reasonable and proper control.

                The waiver claim is specious.  As the court reached this instruction, the Vines' counsel renewed their "earlier objections as to lack of any proof of negligence on the part of plaintiff" and then, without for a moment conceding that the instruction should be given, told the Court:  "We do not object to D-16 because that is a proper statement of law."   The context makes clear that the Vines' counsel was representing to the Court that, if the comparative negligence issue were going to the jury at all, he preferred Instruction D-16 to another defense instruction, D-13

We hold the issue tendered properly before us on its merits.


A trial court should submit an issue to the jury only if the evidence creates a question of fact concerning which reasonable jurors could disagree. See Guerdon Industries, Inc. v. Gentry, 531 So.2d 1202, 1208 (Miss.1988); see also Stewart v. Davis, 571 So.2d 926, 929 (Miss.1990); Harris v. Shields, 568 So.2d 269, 271 (Miss.1990); Wall v. Swilley, 562 So.2d 1252, 1256 (Miss.1990); Copeland v. City of Jackson, 548 So.2d 970, 982 (Miss.1989). There is no direct evidence that Hattie Vines was speeding or otherwise negligent when she struck Windham's automobile. There were only two witnesses who testified on the issue of negligence--Windham and Hattie Vines. Windham certainly had nothing probative to say about Hattie Vines' actions, because he never even saw her until after the impact. Hattie Vines, on the other hand, testified that Windham pulled out immediately in front of her. This cannot in any way be construed as an admission of negligence. A driver who approaches an intersection at which he has the right of way is entitled to assume that crossing traffic will obey stop signs, look for oncoming vehicles before entering the intersection, and yield to through traffic. Neither Windham nor Hattie Vines offered any testimony to establish that Hattie Vines' conduct was in any way unreasonable or...

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