Etheridge v. Harold Case & Co., Inc., et al.
| Docket Number: | 2004-CA-01678-COA Linked Case(s): 2004-CA-01678-COA ; 2004-CT-01678-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-22-2006 Opinion Author: ISHEE, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Traffic control device - Section 63-3-133 - Section 63-3-313 - Animation - Jury instructions - Deceased witness statement - M.R.E. 804(b)(5) Judge(s) Concurring: KING, C.J., MYERS, P.J., CHANDLER, GRIFFIS, BARNES, AND ROBERTS, JJ.; LEE, P.J. JOINS IN PART Dissenting Author : LEE, P.J. Concurs in Result Only: IRVING, J. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 06-28-2004 Appealed from: WALTHALL COUNTY CIRCUIT COURT Judge: Keith Starrett Disposition: A JURY VERDICT THAT NO NEGLIGENCE WAS ATTRIBUTABLE TO THE DEFENDANTS/APPELLEES. Case Number: 95-0164 |
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| Party Name: | Attorney Name: | |||
| Appellant: | ELSIE ETHERIDGE |
ALFRED L. FELDER |
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| Appellee: | HAROLD CASE & COMPANY, INC., A MISSISSIPPI CORPORATION, AND RANDY PARKMAN | DAVID M. OTT |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Traffic control device - Section 63-3-133 - Section 63-3-313 - Animation - Jury instructions - Deceased witness statement - M.R.E. 804(b)(5) |
| Summary of the Facts: | Following a collision between Elsie Etheridge and Randy Parkman, Etheridge filed a negligence action against Parkman and his employer, Harold Case & Company, Inc. A trial was held on the issue of liability only. The jury found in favor of the defendants, and Etheridge appeals. |
| Summary of Opinion Analysis: | Issue 1: Traffic control device Etheridge argues that Parkman was required to obey the traffic-control device on Highway 27 which indicated that an intersection was ahead and told drivers to “SLOW TO 45.” The trial court determined that the traffic-control device was advisory, rather than mandatory, because the double-diamond sign is not a speed limit sign according to the Manual of Uniform Traffic Control Devices. Even though the double-diamond sign is not a speed-limit sign according to the Manual of Uniform Traffic Control Devices, it is an official traffic-control device according to the plain and unambiguous language of section 63-3-133. Furthermore, according to the plain and unambiguous language of section 63-3-313, drivers must obey all traffic-control devices, unless instructed otherwise by a police officer. Although the court erred in ruling that the double-diamond sign was advisory rather than mandatory, the error is harmless since the weight of the evidence lends to the conclusion that Parkman’s speed did not cause the accident. Issue 2: Animation During trial, Etheridge sought to introduce an animation showing that, if Parkman had been going forty-five miles per hour at the point of the warning sign, i.e., before the intersection was in sight, Etheridge would have crossed the intersection before Parkman arrived. She now argues that the court erred in holding that whether Parkman was going forty-five miles per hour 800 feet before he could have seen Etheridge was irrelevant. The trial court did not abuse its discretion in excluding the animation of Etheridge’s expert. Whether Parkman was going forty-five miles per hour before he could see anyone in the intersection, and before anyone in the intersection could see him, is no more relevant to the cause of the accident than whether Parkman rolled through a stop sign five miles north of the intersection. Issue 3: Jury instructions Etheridge argues that the court erred in refusing her theory of the case instruction. The requested jury instruction was conditional upon the jury’s finding that Parkman’s negligence was a proximate and contributing cause of the accident. If the instruction had been granted, the jury would have been at liberty to find that Parkman’s negligence did not contribute to the accident. Therefore, the court erred in refusing to grant this instruction. However, due to the weight of the evidence, this error is harmless. Etheridge also argues that the court erred in granting a number of the defendants’ jury instructions, because they were tantamount to a directed verdict in favor of the defendants. Because substantial evidence supports the verdict that Etheridge was negligent for disregarding an immediate hazard, her argument is without merit. She also argues that the court erred in failing to grant her requested instructions on habit testimony. However, the court did not abuse its discretion in refusing to grant jury instructions that inappropriately commented on the evidence. Issue 4: Deceased witness A witness to the accident, who died before trial, gave statements to each of the parties. The night before trial, the defendants notified Etheridge that they intended to use a statement given by the witness to Etheridge’s investigator. In order to be properly admitted under M.R.E. 804(b)(5), an out-of-court statement must be tested for trustworthiness, materiality, probative value, the interests of justice, and notice. Etheridge argues that the court failed to determine whether the statement contained circumstantial guarantees of trustworthiness, whether it was offered as evidence of a material fact, or whether it was more probative to the point for which it was being offered than the defendants could procure through reasonable efforts. Although the trial court did not recite the language “circumstantial guarantees of trustworthiness” in its ruling, it did find that the statement contained “significant indicia of reliability.” Thus, the trial court clearly tested the statement for its trustworthiness. The court also plainly determined that the statement met the requirements of Rule 804(b)(5). |
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