Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Docket Number
Attorney(S)
  • Dunn Singley, Meridian, for appellant. I. The rule in giving a peremptory instruction is that, conceding all the facts to be true which the testimony tends to establish and drawing all inferences favorable to the other party which may be drawn logically from the testimony, there is no defense made or nothing to be submitted to the jury. Brown Oil Tools, Inc. v. Schmidt, 245 Miss. 238, 148 So.2d 685; Columbus G.R. Co. v. Cobbs, 156 Miss. 604, 126 So. 402; Gulf S.I.R. Co. v. Prine, 118 Miss. 90, 79 So. 62. II. An instruction not based on the evidence is erroneous in that it introduces, before the jury, facts not presented thereby and is well calculated to induce them to suppose that such state of facts, in the opinion of the court, is possible under the evidence and may be considered by them. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; New Orleans N.E.R. Co. v. Miles, 197 Miss. 846, 20 So.2d 657. III. A charge submitting an issue of negligence not raised by the evidence is erroneous. Alabama V.R. Co. v. Hayne, 76 Miss. 538, 24 So. 907; J.J. Newman Lumber Co. v. Dantzler, 107 Miss. 31, 64 So. 931; Southern R. Co. v. Vaughn, 86 Miss. 367, 38 So. 500. IV. The central principle which runs through all cases dealing with statutes regulatory of highway traffic is that such statutes must have a practical or workable interpretation; not an arbitrary or unreasonable construction, and never that which would require an impossibility; and this has been the rule from the earliest enactments of such statutes down to this day. Teche Lines, Inc. v. Danforth, 195 Miss. 226, 12 So.2d 784. V. The sudden emergency doctrine. Ball v. Whitten, 155 Va. 40, 154 S.E. 547; Jones v. Dixie Greyhound Lines, 211 Miss. 34, 50 So.2d 902. Huff, Williams, Gunn, Eppes Crenshaw, Meridian, for appellee. I. The Court properly submitted this case to the jury for decision. Byrd v. Masonite Corp., 218 Miss. 731, 67 So.2d 724; Ferguson v. Denton, 239 Miss. 591, 124 So.2d 279; F.W. Woolworth Co. v. Freeman, 193 Miss. 838, 11 So.2d 447; Hawkins v. Rye, 233 Miss. 132, 101 So.2d 516; Humes v. Young, 219 Miss. 417, 69 So.2d 245; Johnson v. Richardson, 234 Miss. 849, 108 So.2d 194; Kellum v. Cooperative Creamery Assn., 238 Miss. 731, 120 So.2d 433; Meridian Hatcheries v. Troutman, 230 Miss. 493, 93 So.2d 472; Mock v. Natchez Garden Club, 230 Miss. 377, 92 So.2d 562; Moore v. Taggart, 233 Miss. 389, 102 So.2d 333; Phillips v. Delta Motor Lines, 235 Miss. 1, 108 So.2d 409; Posey v. Weatherspoon, 227 Miss. 189, 85 So.2d 908; Thompson v. Thomas, 219 Miss. 552, 69 So.2d 238. II. The jury was given the applicable law of the case in the instructions of the court, and there was no reversible error in the granting and refusing of instructions. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Carlisle v. Cobb Brothers Construction Co., 238 Miss. 681, 119 So.2d 918; City of Jackson v. Wright, 151 Miss. 829, 119 So. 315; Fink v. East Mississippi Electric Power Assn., 234 Miss. 221, 105 So.2d 548; Harris v. Gulf Oil Corp., 247 Miss. 623, 157 So.2d 55; Majure v. Herrington, 243 Miss. 692, 139 So.2d 635; Neely v. City of Charleston, 204 Miss. 360, 37 So.2d 495; Nelms Blum Co. v. Fink, 159 Miss. 372, 131 So. 817; Orr v. Columbus G.R. Co., 210 Miss. 63, 48 So.2d 630; Phillips v. Delta Motor Lines, 235 Miss. 1, 108 So.2d 409; Phillips v. Dow Chemical Co., 247 Miss. 293, 151 So.2d 199; Vann v. Tankersly, 164 Miss. 748, 145 So. 642. III. A reviewing court is required to consider all the evidence and reasonable inferences therefrom in the light most favorable to the verdict winner. Buford v. O'Neal, 240 Miss. 883, 128 So.2d 553; Forbes v. City of Durant, 209 Miss. 246, 46 So.2d 551; Humes v. Young, 219 Miss. 417, 69 So.2d 245; Johns-Manville Products Corp. v. Cather, 208 Miss. 268, 44 So.2d 405; Mississippi Winn-Dixie Supermarkets v. Hughes, 247 Miss. 575, 156 So.2d 734; Phillips v. Dow Chemical Co., supra; Straight v. Brinson, 246 Miss. 132, 149 So.2d 515.
Judges
  • JONES, J.
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Docket Number
Attorney(S)
  • Dunn Singley, Meridian, for appellant. I. The rule in giving a peremptory instruction is that, conceding all the facts to be true which the testimony tends to establish and drawing all inferences favorable to the other party which may be drawn logically from the testimony, there is no defense made or nothing to be submitted to the jury. Brown Oil Tools, Inc. v. Schmidt, 245 Miss. 238, 148 So.2d 685; Columbus G.R. Co. v. Cobbs, 156 Miss. 604, 126 So. 402; Gulf S.I.R. Co. v. Prine, 118 Miss. 90, 79 So. 62. II. An instruction not based on the evidence is erroneous in that it introduces, before the jury, facts not presented thereby and is well calculated to induce them to suppose that such state of facts, in the opinion of the court, is possible under the evidence and may be considered by them. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; New Orleans N.E.R. Co. v. Miles, 197 Miss. 846, 20 So.2d 657. III. A charge submitting an issue of negligence not raised by the evidence is erroneous. Alabama V.R. Co. v. Hayne, 76 Miss. 538, 24 So. 907; J.J. Newman Lumber Co. v. Dantzler, 107 Miss. 31, 64 So. 931; Southern R. Co. v. Vaughn, 86 Miss. 367, 38 So. 500. IV. The central principle which runs through all cases dealing with statutes regulatory of highway traffic is that such statutes must have a practical or workable interpretation; not an arbitrary or unreasonable construction, and never that which would require an impossibility; and this has been the rule from the earliest enactments of such statutes down to this day. Teche Lines, Inc. v. Danforth, 195 Miss. 226, 12 So.2d 784. V. The sudden emergency doctrine. Ball v. Whitten, 155 Va. 40, 154 S.E. 547; Jones v. Dixie Greyhound Lines, 211 Miss. 34, 50 So.2d 902. Huff, Williams, Gunn, Eppes Crenshaw, Meridian, for appellee. I. The Court properly submitted this case to the jury for decision. Byrd v. Masonite Corp., 218 Miss. 731, 67 So.2d 724; Ferguson v. Denton, 239 Miss. 591, 124 So.2d 279; F.W. Woolworth Co. v. Freeman, 193 Miss. 838, 11 So.2d 447; Hawkins v. Rye, 233 Miss. 132, 101 So.2d 516; Humes v. Young, 219 Miss. 417, 69 So.2d 245; Johnson v. Richardson, 234 Miss. 849, 108 So.2d 194; Kellum v. Cooperative Creamery Assn., 238 Miss. 731, 120 So.2d 433; Meridian Hatcheries v. Troutman, 230 Miss. 493, 93 So.2d 472; Mock v. Natchez Garden Club, 230 Miss. 377, 92 So.2d 562; Moore v. Taggart, 233 Miss. 389, 102 So.2d 333; Phillips v. Delta Motor Lines, 235 Miss. 1, 108 So.2d 409; Posey v. Weatherspoon, 227 Miss. 189, 85 So.2d 908; Thompson v. Thomas, 219 Miss. 552, 69 So.2d 238. II. The jury was given the applicable law of the case in the instructions of the court, and there was no reversible error in the granting and refusing of instructions. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Carlisle v. Cobb Brothers Construction Co., 238 Miss. 681, 119 So.2d 918; City of Jackson v. Wright, 151 Miss. 829, 119 So. 315; Fink v. East Mississippi Electric Power Assn., 234 Miss. 221, 105 So.2d 548; Harris v. Gulf Oil Corp., 247 Miss. 623, 157 So.2d 55; Majure v. Herrington, 243 Miss. 692, 139 So.2d 635; Neely v. City of Charleston, 204 Miss. 360, 37 So.2d 495; Nelms Blum Co. v. Fink, 159 Miss. 372, 131 So. 817; Orr v. Columbus G.R. Co., 210 Miss. 63, 48 So.2d 630; Phillips v. Delta Motor Lines, 235 Miss. 1, 108 So.2d 409; Phillips v. Dow Chemical Co., 247 Miss. 293, 151 So.2d 199; Vann v. Tankersly, 164 Miss. 748, 145 So. 642. III. A reviewing court is required to consider all the evidence and reasonable inferences therefrom in the light most favorable to the verdict winner. Buford v. O'Neal, 240 Miss. 883, 128 So.2d 553; Forbes v. City of Durant, 209 Miss. 246, 46 So.2d 551; Humes v. Young, 219 Miss. 417, 69 So.2d 245; Johns-Manville Products Corp. v. Cather, 208 Miss. 268, 44 So.2d 405; Mississippi Winn-Dixie Supermarkets v. Hughes, 247 Miss. 575, 156 So.2d 734; Phillips v. Dow Chemical Co., supra; Straight v. Brinson, 246 Miss. 132, 149 So.2d 515.
Judges
  • JONES, J.
See more information ...
Smart Summary

CIPRIANI v. MILLER

1. Motor vehicles — driving on highway laned for travel — negligence — changing lanes — failure to have car under control.

Eastbound motorist on four-lane highway who had observed disabled automobile in south eastbound lane in time to pull into north lane and, though she had seen following automobile some distance behind her, turned suddenly back into south lane where her automobile collided with the disabled automobile was negligent in changing lanes, in violation of statute proscribing the changing of lanes when it cannot be done safely, and in not having automobile under control. Sec. 8187(a), Code 1942.

2. Highways — stopping car on highway to repair flat tire — motorist, under circumstances, not guilty of such negligence as would bar right to recovery against driver of colliding car.

A motorist who stopped his automobile, which was disabled because of flat tire, as near to curb as he could at overpass on four-lane highway was not guilty of such negligence, if any, as would bar his right to recovery from negligent motorist whose vehicle collided with his and allegedly struck him.

3. Negligence — sudden emergency — motorist not entitled to instruction on sudden emergency of own creation.

Motorist was not entitled to instruction on sudden emergency of own creation.

Headnotes as approved by Jones, J.

JONES, J.

This case involved an automobile collision on March 6, 1957, on Tom Bailey Drive in or near Meridian. After a jury verdict for the defendant, plaintiff appealed. We reverse and remand the case.

Cipriani was returning from New Orleans to his home in Ohio. There was with him in the Cadillac automobile that he was driving his wife, his stepdaughter and stepson. His left rear tire became flat about the time he entered upon an overpass. He pulled to the right as near to the curb as he could and changed the tire just before the accident occurred. At this point, Tom Bailey Drive is a four-lane highway running approximately east and west. The south two lanes are for eastbound traffic and the north two lanes are for westbound traffic. There is a safety zone between the two south lanes and the two north lanes.

As Mr. Cipriani was completing the work on his car, he heard some screeching behind him, looked, and saw a car nearly upon him. In order to escape, he dived onto the sidewalk, which is a raised portion of the bridge on the south side thereof.

Appellee was also returning from New Orleans to her home in Birmingham. Her husband was with her. As she approached she was traveling about fifty miles per hour at a constant speed. At one place she testified she saw the car when she was about a half mile away. She later testified that it was over the crest of a hill and she did not see it until she got to a point she could see over the crest of the hill. How far this was as far as feet are concerned, we are left to wonder. However, she saw it in time to pull into the other lane, and then turn back into the south lane at a point about forty feet from appellant's car. She testified she had previously looked in the rearview mirror and had seen a car coming behind her, about a half mile away, which was some little time before the accident. She further testified that as she pulled over into the north eastbound lane the car behind her gave a sudden frantic honking of the horn which frightened her; she pulled to the right and ran into Mr. Cipriani's car. The record showed she skidded about 32 feet. She did not know she hit appellant but the appellant and his stepdaughter testified that her car struck him on the legs or ankles; she admitted she struck the car and that it was slightly damaged.

The only conflict in the evidence as to how the accident happened was between the appellee and the stepdaughter of appellant, who testified that appellee came straight ahead in her car without turning into the other lane. Appellee testified that she did turn into the other lane. At the conclusion of the evidence the appellant asked for a peremptory instruction on the question of liability, which was refused by the court. The case went to the jury on the question of sudden emergency and other issues.

The lower court was in error in declining the peremptory instruction on liability as requested by appellant. Taking the testimony and all reasonable inferences most favorable to her, it appears that she could only have gotten into the north eastbound lane by negligently violating Sec. 8187(a), Miss. Code of 1942, which provides: "A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety."

(Hn 1) Appellee admitted she saw the car some distance behind her coming in the same direction as she was traveling, but when she turned into the other lane it was necessary for her to suddenly turn back into the lane where appellant's car was located in order to avoid being hit by the car behind her. She had not first ascertained that movement into the other lane could be made with safety. Again it was evident that appellee did not have her car under control because she certainly saw the car in front of her and was unable to stop before it was struck. (Hn 2) We do not believe that appellant, in stopping under the circumstances complained of, was guilty of such negligence, if any, that would bar his right of recovery.

(Hn 3) Appellee was not entitled to the instruction on sudden emergency, because, as heretofore shown, her own negligence created the sudden emergency.

Appellee insists that she was entitled to have the case submitted to the jury because no damages were shown. With this we do not agree. The answer admitted that the automobile was slightly damaged, and the proof by appellant showed he was struck on the ankle or legs; that he had to dive onto the sidewalk, and as a result thereof, although he was able to drive on to his home in Toledo, Ohio, he was severely bruised and injured and subsequently had to spend considerable time in the hospital and under doctors' treatment. The fact that he had other accidents does not destroy his right to recover damages, if any, sustained in this accident, and his proof was sufficient to establish that he did sustain damages.

The case is therefore reversed and remanded for a trial on the issue of damages only.

Reversed and remanded for trial on issue of damages only.

Lee, C.J., and Gillespie, McElroy and Brady, JJ., concur.

Use AI to get other relevant cases.
Try AI Pro free for 7 days Upgrade to AI Pro

Comments

CIPRIANI v. MILLER
(Feb 3, 1964)