Wilburn v. Gordon

• Decision Date: 24 April 1950
• Docket Number: No. 37473,37473
• Citation: 209 Miss. 27,45 So.2d 844
• Parties: WILBURN v. GORDON.
• Court: Mississippi Supreme Court

Page 844

45 So.2d 844

209 Miss. 27

WILBURN v. GORDON.

No. 37473.

Supreme Court of Mississippi, in Banc.

April 24, 1950.

Ben Owen, Columbus, Miss., Roger Landrum, Columbus, Miss., for appellant.

John H. Holloman, Columbus, Miss., W. J. Threadgill, Columbus, Miss., for appellee.

SMITH, Justice.

Appellant sued appellee for damages, as an alleged proximate result of the latter having, as charged, negligently rammed his truck into the rear of the former's car. The matter was submitted to the jury, which returned a verdict for the defendant-appellee, and the plaintiff-appellant appealed.

In midafternoon of a rainswept August day, appellant was driving his car on old Highway 82, West of Columbus, while, behind him, appellee was driving his heavy truck in the same direction. The automobile had a signal light thereon, in sight of the driver of the truck. The thunder was roaring, the lightning flashing, and rain was falling heavily. Appellant saw a jeep approaching ahead on the wet gravel road, and slowed down as a precaution in passing,--then again gathered momentum while the jeep went by. A servant in the car with him confirmed his own impression that the driver of the jeep, which stopped, signalled for help. Appellant, then either stopped or slowed down to such a slow speed, as almost to stop. At this juncture, the truck crashed into the back of the car. The jeep sped away, not having signalled at all. The truck driver was following too closely, according to appellant: while the eccentric vacillation of appellant's automobile between slowing and accelerating speed, and finally apparently stopping, caused the collision, the appellee contends, and that no proper signal was given by appellant, at any time. However, it is to be remembered that he had a working electric signal light on the rear of his car. The appellant argues that the brakes on appellee's truck would not take hold, which is denied. The action was for damage to the automobile, loss of its use, and depreciated market value thereof as a car which had been through a wreck, and repair.

Appellant assigns as error the granting of five instructions to the defendant, and the refusal of two to him.

The first instruction, of which complaint is here made, reads as follows. 'The Court instructs the jury for the defendant that if you believe from the evidence that plaintiff and defendant were equally negligent, then it is your duty to find for the defendant.'

This instruction was erroneously granted. The defendant would not be absolved from liability altogether, if both were negligent equally, but plaintiff's damages would be reduced by fifty percent. Section 1454, Code 1942. The instruction should not have been given. Reynolds-West Lumber Company v. Kellum, 5 Cir., 19 F.2d 72; Gulf, M & N R Company v. Arrington, Miss., 107 So. 378; Cumberland Telephone & Telegraph Company v. Cosnahan et al., 105 Miss. 615, 62 So. 824.

The next instruction, assigned as error, told the jury: 'The Court instructs the jury for the defendant even if you may believe from a preponderance of the evidence that the defendant was guilty of negligence, if you also believe that plaintiff was negligent too, then it is your duty to find for the defendant or to diminish plaintiff's actual damages in such proportion as plaintiff's negligence, if any, may have contributed to the accident.' It is at once manifest that the first part of the instruction is a repetition of part of the condemned one, supra. The instruction, furthermore, gives no guide to the jury to enable them to judge what is negligence in the case, or to appraise it. McDonough Motor Express, Inc., v. Spiers, 180 Miss. 78, 176 So. 723, 177 So. 655. This instruction was erroneous, also.

Appellee contends that we should look at the case as a completed trial, and even though the instructions be technically incorrect, we should refuse to reverse, because the error was not substantial, citing Meridian Sanatorium v. Scruggs, 121 Miss. 330, 83 So. 532; City of Jackson v. Wright, 151 Miss. 829, 119 So. 315; Nelms & Blum Company v. Fink, 159 Miss. 372, 131 So. 817. We cannot agree that the error in granting these instructions was insubstantial, or cured by other instructions in the record, since they are fundamentally in violation of the comparative negligence statute, and transgress our decisions as to instructions anent negligence.

The third instruction granted appellee, of which complaint is made, is as follows: 'The Court instructs the jury for the defendant that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence not only that the defendant was negligent in the manner charged in the declaration, but that such negligence was the proximate cause of the accident, and unless you believe both proposition by a preponderance of the evidence, then it is your duty to find for the defendant.' We have many times condemned instructions which referred the jury to the declaration,--which may be highly technical, may be complex, amended, and supplemented,--and jurors should not be referred to the declaration for the hypothesis upon which to rely, but it should be in the instruction itself. Lanham v. Wright, 164...