Young v. Anderson
Decision Date | 27 April 1964 |
Docket Number | No. 43038,43038 |
Citation | 249 Miss. 539,163 So.2d 253 |
Parties | Tommy R. YOUNG v. J. W. ANDERSON. |
Court | Mississippi Supreme Court |
Robert D. Coit, Meridian, for appellant.
Gipson, Gipson & Wiley, Meridian, for appellee.
This suit for property damages originated in the County Court of Lauderdale County, Mississippi, as the result of an automobile accident on U. S. Highway 45 a few miles south of the City of Meridian. A hearing was had in the County Court, resulting in a verdict for defendant. The cause was appealed to the Circuit Court of such County, and was there affirmed. From these adverse judgments, plaintiff appeals here.
The appellant's first assignment of error--'The trial court erred in commenting on the testimony and orally charging the jury as to the weight of the evidence'--is well taken. The evidence discloses this accident occurred about six o'clock in the evening of June 17, 1960. Plaintiff's automobile was being driven by one Wilson at the time with the knowledge and consent of the owner. Wilson, a minor and not a party to this suit, was driving alone enroute to fill an engagement with a young lady. While so driving in a southerly direction on Highway 45 near the Springhill Road intersection, Wilson met and collided with the automobile of the defendant, Anderson, who was driving in a northerly direction.
The plaintiff's version of the accident is that the defendant cut over into his lane of traffic, thus causing the collision. The defendant's version is that the plaintiff cut over into his lane of traffic, thus causing the collision. There was, therefore, a conflict in the evidence, the resolution of which should have been left to the determination of the jury under proper instructions. The following colloquy took place in the course of the trial and out of which arose the question to be here determined. Mr. Anderson, the defendant below, was on the stand on direct examination when these questions were asked:
'Q. Now, Mr. Anderson, did you hear Mrs. Vandiver ask Mr. Wilson what happened, or words to that effect?
'A. I don't think I heard her--I only heard what he told me.
'Q. Well, what did he tell you?
'A. Like I said, when I got up about the time I come to, I seen the ambulance there, the red lights, and they were still holding me up and according to my recollection, wanted me to go to the hospital. I thought to myself, I want to know what in the world happened, and as soon as I got that in my mind, I wouldn't go. I stayed until I could get to and see what it was all about, and I got to where I could walk around and it seemed like I walked between the cars myself, but I might not but I know in all bounds and reason I remember going practically to the front of my car, there was a Negro there, a couple of fellows holding me and this boy was there walking around too.
'Q. That is Mr. Wilson you are talking about?
'A. Mr. Wilson--and I asked him, 'Son, what in the world did you mean?'
'Q. What did he say?
'A. He said, 'Well, I don't know--I was looking back and when I turned back, the sun blinded me.'
'Q. In other words, he was looking back and then he turned his eyes back to the--his eyes back, the sun blinded him?
'A. That is what he told me. Said there is a house out there and I believe he said something about knowing the boys that lived there or something, and he was just looking back and he did say that he turned back and the sun was blinding him and he said, 'That's all I know."
And later, while the same witness was being cross-examined, the following transpired:
'By Mr. Coit:
'
'
'
'By Mr. Gipson:
'We object to that, he was going North, he wasn't going South.
'By Mr. Coit:
'By Mr. Gipson:
'It's not involved in this law suit.
'By Mr. Coit:
'If it please the Court, I submit that it is very much involved as to whether or not the sun would be in the eyes of a man headed almost due South at 6:00 o'clock in the afternoon.
'By the Court:
Sec. 1530, Miss.Code 1942, Anno., provides, among other things, as follows: 'The judge in any cause, civil or criminal, shall not sum up or comment on the testimony, or charge the jury as to the weight of evidence; but at the request of either party he shall instruct the jury upon the principles of law applicable to the case. * * *'
Our courts have always carefully guarded against allowing the trial judge to testify or to comment upon the weight and value of the evidence, to sum up the evidence, or to comment on the testimony. The case of Sivley v. Sivley, 96 Miss. 137, 51 So. 457, holds in part in regard to this point as follows:
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...no objection was necessary, since there was no indication whether an objection was made to comments by the judges in Young v. Anderson, 249 Miss. 539, 163 So.2d 253 (1964) and Sivley v. Sivley, 96 Miss. 137, 51 So. 457 (1910). Nichols admits that he failed to make a contemporaneous objectio......
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