Williams v. City of Gulfport

• Decision Date: 25 April 1932
• Docket Number: 29977
• Citation: 163 Miss. 334,141 So. 288
• Court: Mississippi Supreme Court
• Parties: WILLIAMS v. CITY OF GULFPORT

141 So. 288

163 Miss. 334

WILLIAMS v. CITY OF GULFPORT

No. 29977

Supreme Court of Mississippi

April 25, 1932

Division B

Suggestion Of Error Overruled May 23, 1932.

APPEAL from circuit court of Harrison county, HON. W. A. WHITE Judge.

Action by Mrs. Eunice Williams against the City of Gulfport. From the judgment, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

M. D. Brown and Mize & Mize & Thompson, all of Gulfport, for appellant.

It is well settled that if a verdict of a jury is contrary to the law and the evidence, this court will reverse for it.

Powers v. Chapman, 116 So. 609; C. & G. Ry. Co. v. Buford, 116 So. 817; City of Jackson v. Lewis, 108 So. 156; City of Albany v. Black, 108 So. 49; Morgan Hill Paving Co. v. Fonville, 119 So. 610; Senatobia v. Dean, 127 So. 773; Birdsong v. Town of Mendenhall, 97 Miss. 544; Saxon v. Houlka, 107 Miss. 161; Jordan v. Lexington, 97 So. 758.

The court erred in giving the following instruction for the appellee:

The court instructs the jury for the defendant that if they believe from the evidence that the negligence of the driver of plaintiff's car, if they believe there was such negligence, was the sole proximate cause of the accident complained of, then they should find for the defendant.

This instruction is erroneous and misleading, because there was no evidence whatever upon which to base the instruction.

Neal v. Dukate, 93 Miss. 201; Y. & M. V. Ry. Co. v. Lucken, 102 So. 393; Moore v. Johnson, 114 So. 734; C. & G. Ry. Co. v. Lee, 115 So. 782; Seaboard Air Line Co. v. Watson, 113 So. 716; Coleman v. Adair, 75 Miss. 660.

Heiss & Heiss, of Gulfport, and W. L. Guice, of Biloxi, for appellee.

It is to be borne in mind that the appellant did not request a peremptory instruction on the question of liability, but took the position that this question of negligence was one of fact and law and secured instruction submitting this question to the jury, thereby waiving this right, if it was a right, and, we submit, is estopped from asserting it now.

3 C. J., page 860, Sec. 760, note 9.

The third assignment of error of appellant is the granting of the certain instruction therein given the defendant which charges, in the usual accepted language, that if the jury believed from the evidence that the negligence of the driver of plaintiff's car, if they believe there was such negligence, was the sole proximate cause of the accident complained of, then the jury should find for the defendant.

The sole objection to this instruction was that there was no evidence upon which to base any negligence of the plaintiff's driver. To this it is only needed to answer that the jury had the right to believe from the testimony of the plaintiff's witnesses, Mrs. Strong, that the sudden stopping of the car was due to the sudden application of the brakes by the driver when the defendant was not guilty of negligence. In this instruction we are speaking of sole proximate negligence. In addition to this we submit counsel are in error in saying that the plaintiff would not be chargeable in any event with the negligence of her driver, for according to her own admission, the car in question was her property and her husband was at her request driving her to the place she desired to go.

OPINION

Griffith, J.

Except for the giving of the instruction which we shall copy herein, the verdict and judgment would be affirmed; no other substantial error appearing in the record.

At the request of appellee, the court granted the following instruction: "The court instructs the jury for the defendant that if they believe from the evidence that the...