Snowden v. Webb , 217 Miss. 664 ( 1953 )

Aebington, J.

This is an appeal from a judgment for damages in favor of appellee for personal injuries sustained by her as the result of a collision between an automobile which she was driving and an automobile driven by appellant on Highway No. 45 at a point about eight miles north of the City of Meridian. The proof shows that both cars were traveling in a northerly direction in a slow drizzling rain and that the collision occurred about 7:30 A.M. when ap-pellee undertook to pass appellant at a time when appellant was undertaking to make a left turn into a private driveway which led into a field belonging to one Lamar Lyle, where a house was under construction approximately 500 to 600 feet from the highway. The declaration charged that when Mrs. Webb approached the Snow-den car he was traveling on the right side of the highway, that Mrs. Webb sounded her horn as a signal to Snowden that she intended to pass him on the left side, that it was Snowden’s duty not to turn his automobile across the left portion of the highway without first determining whether other traffic on the highway was attempting to or was in the act of passing his automobile, and, further, not to turn his automobile across the left side of the highway at a time when to do so would be likely to cause a collision with another automobile, and not to attempt to cross the left lane of the highway without first giving an adequate warning signal of his intention so to do, but that he negligently failed to observe these duties and turned his automobile from the right lane to the left lane of said highway and ran the same into the side of the automobile which Mrs. Webb was driving.

Appellant argues two grounds for reversal. The first is prejudicial error alleged to have been committed by counsel for plaintiff in one question to a witness and in his argument to the jury, and the second is that the verdict is against the overwhelming weight of the evidence. Since the second ground requires a review of the evidence, we shall consider it first.

The highway was of standard concrete construction with a marked line down the center. It was practically level and was perfectly straight for a considerable distance in both directions from the scene of the collision. There were no houses near the highway at that point. Snowden was a carpenter foreman and lived in Meridian. On the morning in question he had picked up C. E. Tol-bert, W. R. Jackson, and Charles M. Craven, white, and Charlie Hall, colored, in Meridian, and all of them were en route to the Lyle house under construction for the purpose of working thereon that day. Mrs. Webb testified that she was fully alert as she traveled north along the highway. She overtook a Ford pick-up truck driven by J. W. Newell and passed it. She then got back into the right lane of traffic and shortly afterward approached the Snowden car which was traveling about fifteen miles per hour. She was driving about 45 to 50 miles per hour. About 100 feet before reaching Snowden, she sounded her horn as a signal to Snowden that she intended to pass and steered her car into the left lane of the highway again. Snowden gave no signal or warning of any kind that he intended to make a left turn. She did not notice the little private driveway which led off to the left. Just as she was in the act of passing the Snow-den car, he turned to the left without warning; she turned the left wheels of her car onto the shoulder of the highway in an effort to avoid being struck, but nevertheless the left front of the Snowden car struck her ear on the rear right side at a point opposite the private driveway and knocked her down a steep embankment.

J. W. Newell testified that lie was traveling north on the highway at a speed of abont 25 or 35 miles per honr and that Mrs. Webb passed him when he was abont 300 yards behind the Snowden car. She was driving abont 45 or 50 miles per honr. She turned back to the right side of the highway and as she approached the Snowden car she again moved over into the left lane. ‘ ‘ She swung it far enough I had vision of the two cars. . . . Wasn’t a thing in the world between me and the two cars that come together. ’ ’ Newell further testified that when Mrs. Webb started to pass the Snowden car, Snowden “cut right in. He didn’t cut in at the front, he didn’t cut in at the center; he cut in on the right of the rear right fender as she started around him. ’ ’ When asked as to whether any signal was given of Snowden’s intention to turn left, he said, “If it was, I certainly didn’t see it, and I was looking dead down the road.” He testified that at the moment of the collision Mrs. Webb’s left wheels were two and a half to three feet off the pavement on the left side, and that Snowden crossed over the center line to the left and struck her with his left front and that it bent Snowden’s front bumper. This was all the evidence for plaintiff on the issue of negligence.

■ Tolbert testified that he was riding on the back seat immediately behind Snowden; he heard no horn blow; Snowden slowed down to about ten miles per hour and extended his hand for a left turn about fifty or sixty feet before reaching the private roadway and then pulled it back in; Tolbert did not know that another car was approaching; he heard the horn on the Webb car just as the two cars collided; he said Mrs. Webb was driving sixty miles per hour and that the collision occurred at a time when Snowden had not begun to turn to the left but at a time when it was opposite the private driveway.

W. R. Jackson testified that he was riding in the middle of the back seat. He did not know the Webb car was approaching. He said that Snowden held out his hand for a left turn as they approached the driveway, but gave no estimate of the distance from the driveway when this was done and did not state how long the signal was given. He gave no estimate of the speed of Mrs. Webb’s car.

Charles Craven said he was riding on the front seat with Snowden; they were talking; he first said that the first he knew of the Webb car was when it came in contact with the Snowden car; then he said “we” saw the Webb car about 200 yards behind us; Snowden gave a signal for a left turn about 100 to 125 feet from where he began to turn; Mrs. Webb was driving 75 or 80 miles an hour; before Snowden turned “he pulled his arm in to make the turn. ’ ’ He knew this was a dangerous place to turn and he told Snowden “there comes a car.” The Webb car was then “a hundred or two foot down the road.”

Charlie Hall testified that he was riding in the Snow-den car on the right side on the back seat; he looked back and saw the Webb car coming about 140 or 150 feet behind, and Tolbert and Jackson also looked back; Snow-den gave a signal for a left turn before he reached the private driveway and was turning at the time of the collision. He estimated the speed of the Webb car at 75 miles per hour or more.

Snowden testified that when he was about 100 or 150 feet from the private driveway he looked in the rear view mirror and saw the Webb car approaching about a block and a half or two blocks behind him; he gave a left hand signal and slowed down to five or ten miles per hour and pulled in his hand and caught the steering wheel and shifted into second gear to make his turn, and about that instant the collision occurred. He admitted that he did not continue to watch the Webb car in his rear view mirror. He did not hear Craven tell him that a car was coming from behind.

Section 8192, Code of 1942, provides in part: “(a) No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving a clearly audible signal by sounding tbe born if any pedestrian may be affected by sucb movement or after giving an appropriate signal in tbe manner hereinafter provided in tbe event any other vehicle may be affected by sucb movement, (b) A signal of intention to turn right or left shall be given continuously for a reasonable distance before turning.” Section 8193, Code of 1942, provides that tbe signal to turn may be given by means of tbe band and arm or by a signal lamp or device, and Section 8194 provides that if the band and arm signal is used tbe signal for a left turn shall be by extending tbe band and arm horizontally.

We here emphasize that our statutes provide that no vehicle shall be turned from a different course upon a highway until sucb movement can be made with reasonable safety and that if any other vehicle is affected by sucb movement tbe signal of intention to turn shall be given continuously for a reasonable distance before turning.

Section 1455, Code of 1942, provides that “all questions of negligence and contributory negligence shall be for tbe jury to determine.” That is tbe legislative mandate and that is tbe rule which this Court has followed in cases too numerous to mention. We think that it was a question for the jury to say whether Snowden started turning his car at a time when the turn could not be made with reasonable safety, and also whether Snow-den gave any signal at all of his intention to turn and whether, if he gave a signal, it was given continuously for a reasonable distance before turning.

The argument is made that Snowden had more witnesses than the plaintiff on the crucial issue as to the signals and that for this reason the verdict of the jury in plaintiff’s favor is against the overwhelming weight of the evidence. We do not agree with that contention. In the case of Burrill v. Rau, 153 Miss. 437, 440, 121 So. 118, it was said: “The jury heard all the witnesses testify, and saw their demeanor on the witness stand. It is within the exclusive province of the jury to pass on the credibility of witnesses. The character and weight of the evidence should control the jury in arriving at their verdict, not the number of witnesses testifying to the existence of an alleged fact.” And in Lockhart v. Bethea, 44 So. 2d 851, 852, not reported in the State Reports, this Court said: “Weight of testimony is not adjudged by mere superior numbers. It is qualitative and not quantitative.” It is our conclusion that the question of negligence was for the jury’s determination and that its verdict is not against the weight of the evidence. It was the peculiar province of the jury to judge the weight and worth of the testimony of the various witnesses. For instance, the jury could well have discounted Tolbert’s estimate of the speed of the Webb car when he admitted that he did not know a car was approaching until the crash. Likewise, the jury could have found from the testimony of Snowden’s witness Craven that Snowden had ample warning of the approach of the Webb car and negligently turned his car in violation of the statute from a direct course on the highway at a time when a left turn could not be made with reasonable safety. Also, the jury could have found from Snowden’s own testimony that after having seen the Webb car approaching on the open road a block and a half or two blocks behind him and well knowing that he had slowed down to five or ten miles an hour, as he said, he should have known that he could not make a left turn with reasonable safety and that he was negligent in undertaking to make the turn when he did; that if he had been using his rear view mirror he should have known that the Webb car had overtaken him and was about to pass him. The solution of such questions as those stated, as well as all other disputed questions of fact, is peculiarly for the jury under our statute and decisions.

Appellant also complains at what he calls veiled references to insurance made by appellee’s attorney and also certain remarks made by appellee’s counsel in his closing argument. When Mr. Snowden was under cross-examination the following occurred:

“Q. Now, Mr. Snowden, immediately after this accident occurred, you got Mr. Phillip Keene to come out there to take statements, didn’t you?

“BY MB. CAMEBON: We object to that as being incompetent, irrelevant, and immaterial, and has no relevancy to the facts of this accident or the liability of the parties.

‘ ‘ BY THE COUBT: Sustained.

“BY MB. SNOW: If your Honor please, I want to ask him what he told Mr. Keene.

“BY THE COUBT: I sustain the objection.”

Appellant argues and would apparently have us take judicial notice of the fact that Mr. Keene is an insurance adjuster and that a mere reference to his name was in effect telling the jury that Snowden had insurance on his automobile. The question was raised in a motion for a new trial and evidence was taken thereon. It appears from that evidence that Mr. Keene investigates accidents both for insurance companies and for individuals, and moreover, that counsel for plaintiff was seeking to show that Mr. Snowden gave to Mr. Keene a version of the accident which was different from that to which he testified. At any rate, the trial'court Sustained an objection to the question and that ended the matter without any motion being made for a mistrial. The trial court did all that he was then called upon to do and we cannot see that the mere mention of a man’s name is conveying to the jury the idea that there is liability coverage in the ease.

According to a special bill of exceptions taken after the trial, counsel for plaintiff made the following statements in his closing argument:

“When I came to the bar here in Meridian, Mr. Ben Cameron was representing the big corporations and was doing as he is doing now, — making the argument that jurors could not return a verdict against Ms client unless they found the witnesses were lying, and adroitly making that appeal in those cases, as he has in this case.

“And Mr. Winston Cameron said to you that any verdict would come out of Mr. Snowden’s wages. I covenant with you gentlemen that not one cent of this would come out of Mr. Snowden’s pocket or wages.”

The hill of exceptions further shows: ‘ ‘ Thereupon Mr. Ben Cameron excepted to the argument made on the grounds that it was incompetent, irrelevant, and immaterial and not based on any evidence, and was inflammatory and prejudicial. Whereupon the court stated ‘The objection is sustained.’ Thereupon Mr. Snow, addressing the court, stated: ‘Does your Honor hold that I can’t answer him on that feature of this matter, that I can’t answer him as regards the matter of this man’s wages?’ Thereupon the court stated, ‘I have ruled, Mr. Snow, and have sustained the objection.’ ”

Addressing ourselves first to the first paragraph of the argument shown by the bill of exceptions, it is apparent that counsel for defendant had appealed to the jury on the basis that if they did not find for the defendant, this was tantamount to a finding that his witnesses had committed perjury. Opposing counsel made the statement in reply that this same argument had been repeatedly made to juries in the county for the past twenty-five years. The mere reference to the fact that Mr. Cameron had represented big corporations did not carry any inference that he was representing an insurance company in the case then on trial. In 53 Am. Jur., p. 373, Trial, Sec. 468, it is said: “If counsel for a party litigant or for the defendant in a criminal prosecution pursues an improper line of argument, he thereby invites a reply, and statements made by opposing counsel or the prosecuting attorney by way of retaliation thereto have often been considered proper which would otherwise be objectionable. This principle has been applied although the statements in reply were irrelevant, where they were in reply to irrelevant matter in the argument of opposing counsel, and although the retaliatory language might otherwise he improper as an appeal to racial or national, religious, political, or social prejudice generally.”

As to the second paragraph of the argument as shown by the hill of exceptions, it appears that one of counsel had told the jury that any verdict they might render for the plaintiff would have to he paid hy the defendant out of his wages, and in response to that statement opposing counsel told the jury that not one cent would come out of the pocket or wages of the defendant. It is argued that the statement of plaintiff’s counsel was in effect telling the jury that the defendant carried liability insurance. If that be the effect of it, then the effect of what defendant’s counsel had said to the jury just previously was that the defendant did not have any liability insurance. In other words, it is clear that the remarks of counsel for plaintiff were invited by counsel for defendant. In the case of Avent v. Tucker, 188 Miss. 207, 225, 194 So. 496, we held: “. . . it is argued here now that the court should have permitted the jury to be informed that Mrs. Avent carried no liability insurance. In other words, the jury were to be told that whatever verdict they might render against Mrs. Avent would necessarily have to be paid by her for the reason that the plaintiff in a suit may not show that the defendant carried insurance against the particular event involved. The converse is true that it may not be conveyed to the jury that the defendant in the case has no protection by insurance, and if the verdict is against him, he, and not an insurance company, must pay it. To hold otherwise would be to abolish the rule as announced by this court in the case of Herrin, Lambert & Company v. Daly, 80 Miss. 340, 31 So. 790, 92 Am. St. Rep. 605, which has been consistently followed by this court. It would be manifestly unfair to permit a defendant in a damage suit to show that he carried no insurance and whatever verdict was rendered wonld be enforced npon Mm personally. ’ ’

In the recent case of Petermann v. Gary, 210 Miss. 438, 448, 49 So. 2d 828, the.point now raised by appellant was decided adversely to bis contention with tbis statement:

“The reference to insurance protection carried by Peter-mann Brothers in tbis case, however, was made by one of the defendants, Poster, in answer to a question propounded to him by the defendants’ own attorney,'and for that reason the defendants are not in a position to take advantage of the rule laid down in Herrin v. Daly, supra, and followed in the later cases cited above. ’ ’

In the present case, counsel for the defendant told the jury that any verdict they might render for plaintiff would have to be paid by defendant out of bis wages. It was proper for plaintiff’s counsel to reply to tbis. Counsel for plaintiff bad to do something to remove the sting and effect of such an argument and bis reply was invited by the remarks of counsel for defendant. We think be was justified in saying to the jury just what be did say, and furthermore,' the trial judge sustained an objection to bis argument and told the jury that plaintiff’s counsel could not reply to what bad been improperly injected into the argument by defendant’s counsel, so, even if the,remarks of plaintiff’s counsel bad been improper, they were immediately excluded by the trial judge. Since we find no reversible error, in the record, the judgment will be affirmed.

Affirmed.

Hall, Lee, Kyle, Holmes, Ethridge, and Lotterhos, JJ., concur. McGehee, G. J., and Roberds, J., dissenting.