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Reese v. Summers8/30/2001
DATE OF JUDGMENT: 02/24/2000
TRIAL JUDGE: HON. DALE HARKEY
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 08/30/2001
. On January 3, 1995, a pickup truck occupied by driver Farrell Thompson and passenger Edward Reese was struck from behind by a Mack truck driven by Brian Mallory, at the intersection of Jamestown Road and Highway 63 in Moss Point, Mississippi. Thompson and Reese later filed suit in Jackson County Circuit Court against Mallory's employer, John Summers, in his individual capacity and doing business as John Summers Trucking, and against Mallory. The suit alleged that Mallory, while in the scope of his employment, negligently caused the accident. At the conclusion of a four-day trial, the jury found for Thompson in the amount of $29,800 and for Reese in the amount of $47,200. However, the jury also found that Thompson contributed to the accident and was 30% negligent. The circuit court subsequently reduced the amount of damages by that percentage. Following the denial of their post-trial motions, Thompson and Reese now appeal, raising the following issues which we have edited slightly:
I. WHETHER THE TRIAL COURT ERRED WHEN IT GRANTED JURY INSTRUCTION NUMBER 10, WHICH IS BASED UPON FACTS NOT IN EVIDENCE?
II. WHETHER THE TRIAL COURT ERRED WHEN IT REFUSED TO GRANT PLAINTIFFS' MOTION FOR PEREMPTORY INSTRUCTION, JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, A NEW TRIAL AS TO APPORTIONMENT OF FAULT DUE TO THE VERDICT BEING CONTRARY TO THE WEIGHT OF THE EVIDENCE?
III. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO GRANT PLAINTIFFS' MOTION FOR ADDITUR OR, IN THE ALTERNATIVE, FOR A NEW TRIAL ON THE ISSUE OF DAMAGES DUE TO THE VERDICT BEING CONTRARY TO THE WEIGHT OF THE EVIDENCE?
Finding no error in the trial court's judgment, we affirm.
FACTS
. While there is no dispute that the Mack truck driven by Mallory struck Thompson's pickup from behind, the parties are sharply divided on exactly how the accident occurred. According to Thompson and Reese, at the time of the accident they were driving down Highway 63 in Moss Point looking for an auto parts store. As they approached the intersection of Highway 63 and Jamestown Road, the traffic light turned red, and Thompson, the driver, applied his brakes to slow down. Before Thompson came to a complete stop, however, the light changed to green, and he began accelerating again. As Thompson's pickup entered the intersection, it was struck from behind by Mallory.
. Mallory and Summers dispute that theory of how the accident occurred. According to Mallory's testimony and that of his companion Sean Page, Thompson's brake lights were still on at the time of the accident even though the light was green, thereby indicating that Thompson was not accelerating but coming to a stop. Mallory and Summers theorize that Thompson was actually on his way back to the hotel where he and Reese were staying which was located on the west side of Highway 63 at the intersection where the accident occurred. However, Thompson failed to get into the left hand turn lane and instead stopped in the middle of the intersection where the accident occurred.
ANALYSIS
I. WHETHER THE TRIAL COURT ERRED WHEN IT GRANTED JURY INSTRUCTION NUMBER 10, WHICH IS BASED UPON FACTS NOT IN EVIDENCE?
. In reviewing the granting or refusal of jury instructions, this Court has said that if the instructions actually given fairly announce the law of the case and create no injustice when read as a whole, n
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