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McFarland v. Leake9/2/2003
e:
Appellant assigns as error the granting to appellees of an instruction that if the truck was being driven at a greater rate of speed than 50 miles per hour immediately before the collision that such speed would constitute negligence, and if such negligence proximately contributed to the collision then the verdict should be for plaintiff. We are of the opinion that this instruction was proper.
Walters, 250 Miss. at 391-92, 164 So. 2d at 902-03. We find this rule inapplicable to the present situation in that, even were we to determine that Leake was speeding, as herein described McFarland has not proven that speed was the proximate cause of the collision. After our de novo review, we conclude the trial court did not err in finding that summary judgment was proper in this case; thus, we affirm.
. THE JUDGMENT OF THE WILKINSON COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., SOUTHWICK, P.J., THOMAS, MYERS AND CHANDLER, JJ., CONCUR. KING, P.J., DISSENTS WITH A SEPARATE WRITTEN OPINION. BRIDGES, IRVING AND GRIFFIS, JJ., NOT PARTICIPATING.
KING, P.J., DISSENTING:
. I dissent from the majority opinion herein.
. This case is before this Court on the grant of the defendant's motion for summary judgment.
. Summary judgment should only be granted when the material facts demonstrate that the moving party is entitled to judgment as a matter of law. Williamson ex rel. Williamson v. Keith, 786 So. 2d 390 ( ) (Miss. 2001).
. Having read the record, it appears to be a close question of whether that standard has been met. Where it is a close question, it should be resolved against the grant of summary judgment. Prescott v. Leaf River Forest Products, Inc., 740 So. 2d 301 ( ) (Miss. 1999).
. It is on that basis I dissent, and would remand this issue for trial.
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