Haynes-Walker, Lumber Co. v. Hankins

Anderson, J., delivered the opinion of the court. Appellees, Dan E. Hankins and others, the widow and children of Frank Hankins, deceased, brought this' action in the circuit court of Itawamba county against appellant, a lumber company, for damages for the death of said deceased, caused by the alleged negligence of one of appellant’s lumber truck drivers, resulting in a collision between one of its lumber trucks driven by such driver and an automobile owned and driven by one of the ap-' pellees, Rex Hankins, in which automobile the deceased, Frank Hankins, was riding as a guest of his said son. There was a trial and judgment in favor of- appellees in the sum of two thousand five hundred dollars from which judgment appellant prosecutes this appeal. *62 Several errors are assigned and argued as grounds for a reversal of the judgment. It is urged with much force and ability that the evidence was insufficient to go to the jury on the question of liability; that therefore the trial court erred in refusing appellant’s request for a directed verdict in its favor. The collision occurred in Lee county on a road known as Bankhead highway between Tupelo and Fulton. The Bankhead highway between Tupelo and Fulton where the collision and injury occurred which resulted in the death of Frank Hankins is constructed of concrete and is eighteen feet wide. The highway runs almost clue east and west. Appellant’s lumber truck was being driven by one of its employees, Deaton, going east, while the automobile in which the deceased was riding as a guest of his son, appellee Bex Hankins, was being driven west. The testimony on behalf of the appellees tended to show that, as the automobile and truck approached each other, the automobile was traveling on the north, or right-hand side of the road, going at a speed of from ten to fifteen miles an hour, while the truck was traveling’ on the same side of the road, the left-hand side from it, and therefore, on the wrong side of the road, at a speed of thirty to forty miles an hour ; that thus traveling the driver of the truck appeared not to have discovered the approach of the automobile until the latter and the truck were only about' twenty-five yards apart, and that then the driver of the truck, instead of turning the truck to his right in order to avoid a collision, turned to the left and thus continued until the automobile and the truck were only ten or fifteen yards apart, when in an effort on the part of both drivers to avoid a collision, the truck ran into the automobile, wrecking it, and causing the death of the deceased, Frank Hankins. Appellant’s testimony tended to show substantially the converse of that of appellees. The principal witnesses for the respective parties, naturally, were the drivers of the truck and automobile. Their testimony was squarely in conflict, that of appellees making out a clear case of *63 liability, while that of appellant made out a perfect defense in its behalf. Appellant contends that the evidence for appellees is so unreasonable that it-is unbelievable to the fair mind; that the physical condition of the truck and automobile after the wreck caused by the collision, as shown by the testimony without conflict, demonstrates the truth of appellant’s testimony as to how the collision occurred and the falsity of that by appellees as to how it occurred. In other words, appellant’s position is: That because of the physical condition of the automobile and the truck as shown by the testimony, the trial court should have overturned appellees’ testimony as unworthy to g',o to the jury. Immediately after the collision between the truck and the automobile took place, Mr. Eeese, the sheriff of Lee county, and Mr. Sims, a justice of the peace of that county, and others, were at the scene. The truck and the automobile had not been moved. They were exactly in the same position as they were when they stopped after the collision. It was a droughty spell, and there was dust on the eighteen-foot concrete road. There were still visible the tracks of the truck and of the automobile in the dust on the road as they came together. Eeese,- Sims, and others testified as to these tracks and as to the position of the automobile and the truck, which testimony tended to corroborate that of the driver of the automobile that the truck ran into the automobile in the manner testified to by him. Issues of fact are to be tried by the jury. The court will not be justified in taking a case from the jury where there is substantial evidence tending to prove the plaintiff’s case. The court cannot substitute its judgment- on an issue of fact for that of the jury. The physical signs left on an automobile and a heavy truck resulting’ from a collision between them naturally would be, in a large measure, treacherous and uncertain in meaning. The jury heard the testimony as to their physical condition as well as the other testimony in the case. In addition, in considering the question, they had a right to draw on their own knowledge and experience in reference to such *64 matters. We are of the opinion that the trial court committed no error in refusing to direct verdict for appellant, and, furthermore, this is not a case where the evidence is so overwhelmingly against the verdict of the jury that the court would be justified in granting- a new-trial on that ground alone. Appellant contended on the trial in the court below that the injury and death of deceased was brought about by the alleged fact that appellee Rex Hankins, the driver of the automobile, was a reckless driver which was known to the deceased, his father, and that at the time of the collision, he was negligently and recklessly driving his car, which was the proximate cause of the injury and death of deceased. Appellant submitted that theory of the case to the jury in the following instruction:' “The court instructs the jury for the defendant that if you believe from the preponderance of the evidence that Rex Hankins did on the occasion of this accident and other times on this trip before the accident so negligently operate his automobile as to put Prank Hankins, deceased, on notice that he, Rex Hankins, was a dangerous driver, and that it was dangerous to ride further with him, and that Prank Hankins, deceased, continued to ride with Rex Hankins, and that his injury and death was caused in whole or in part as approximate result of Rex Hankins’ negligence, then the plaintiff cannot recover anything, and it would be your sworn duty to find for the defendant. ’ ’ In order to meet that theory of appellant’s defense, appellees had the court to instruct the jury as follows: “The court charges the jury that the burden is upon defendants to show by a preponderance of the evidence that Rex Hankins was such ’a reckless driver as to put deceased on notice that it was dangerous to ride with him. ’ ’ The giving of the latter instruction is urged by appellant as reversible error. Appellant contends that the instruction was misleading to the jury; that it does not embody a correct legal principle, and is in conflict with *65 other instructions given in the case; that the jury had a right to infer from the instruction that it was1 their duty to return a verdict for the appellees if appellant had failed to show by a preponderance ,of evidence that appellee Rex Hankins was such a reckless driver as to put deceased on notice that it was dangerous to ride with him. We are of the opinion that appellant’s criticism of the instruction is not well founded. Evidently the instruction was given appellees to meet appellant’s theory of the case as embodied in the instruction first copied above. There was no error in the instruction so far as it went, and, taken in connection with the other instructions in the case, and especially appellant’s instructions, it could not have been misleading to the jury. This court has held time and again that all of the instructions given in a case, both for the plaintiff and defendant, are to be considered together as one instruction. They are to be interpreted as a whole, and, when so viewed, if they embody the applicable law of the case, there is no error although some one or more instructions, taken alone, are incomplete. The trial judge said during the progress of the trial: “I do not think that has anything to do with the case; he is dead, and died from that wound.” This statement in the presence of the jury was objected to by appellant. We think this statement was harmless, because there really was no conflict in the evidence as to the fact that the injury done the deceased by appellant caused the former’s death. We do not think appellant’s other assignments of error are sufficiently serious to call for their discussion by the court. It follows from these views that the judgment should be affirmed on direct appeal. Appellees prosecute a cross-appeal. There was a verdict of two thousand five hundred dollars. Appellees, considering that the amount of the verdict was wholly inadequate, made a motion for a new trial on the question alone of damages. This motion was overruled. Appellees’ position is that the amount of the verdict was the result of passion and prejudice on the part of the jury. To *66 sustain, their position, they rely principally on the case of Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470. As we view it, that case is not controlling' here. There was no evidence in that case tending’ to show that deceased was guilty of any negligence contributing to his injury, while there is evidence in the present case tending to that effect. The jury may have reached the conclusion that, although appellant’s negligence was the proximate cause of the injury, nevertheless the collision was due in part to the negligence of appellee Rex Hankins and his father in riding with him, and may have, without being instructed to that effect, diminished appellees’ damages, as provided in chapter 135, Laws of 1916 (Hemingway’s Code, section 502.). The jury had a right to do this if the evidence justified it, even though not so instructed by the court. We cannot say that the verdict was the result of passion or prejudice. Therefore the case is affirmed on cross-appeal. Affirmed on direct and cross-appeal.