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Phan v. Denley11/22/2005
ng onto a highway and another car. "The evidence at trial concerning the manner in which the accident occurred was sharply conflicting. The physical evidence, skidmarks and damages to the truck, support Mills' contention . . . . This is a classic jury question of fact." Denley argues that the jury weighed the evidence and ruled accordingly. "The jury resolved the issue of fact in favor of appellee in the instant case, and since there was ample evidence in the record on which the jury could have based its verdict, we are of the opinion that it should be sustained." Straight v. Brinson, 149 So.2d 515, 516 (Miss. 1963). Similarly, the record show substantial evidence that a the jury could reasonably base this verdict on.
III.
. Lastly, Phan argues that the trial court improperly denied two of her jury instructions. "In determining whether reversible error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Whitten v. Cox, 799 So. 2d 1, 16 ( ) (Miss. 2000).
. The first instruction asked the jury to find for Phan if Denley acted negligently in choosing the merge entrance over the perpendicular entrance. The second instructed the jury that Phan did not have a duty to stop at the intersection nor did she have a duty to avoid a collision. The judge denied the instruction since the case law did not support a concept that Denley had a duty to choose the safest route and thus not a proper statement of the law. He denied the other instruction as not a correct statement of the law. Phan argues that this kept her from presenting her theory of the case. . Phan argues that just because Denley could legally turn does not mean the turn was reasonably prudent. Phan also argues that the court acted as the fact finder by deciding that Denley had already committed to making his turn when denying the second instruction. Phan cites to Crossley v. James, 365 So.2d 957, 958 (Miss. 1978) to say, "The instructions place upon appellant a greater burden than the law imposes, viz, the burden of avoiding the collision."
. The trial court correctly states that no case or statutory law exists that requires someone to choose a safer turn. Accordingly, the trial court did not act erroneously by denying the first jury instruction.
. Also, Mississippi Code Annotated ยง 63-3-805 notes that, "However, said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right-of-way to the vehicle so proceeding into or across the through highway." Thus, leaving out the second jury instruction did not create an additional burden on Phan since other instructions correctly instructed that if the evidence showed that Phan had entered the intersection or was approaching so close to the intersection so as to constitute an immediate hazard, then Denley had the duty to remain stopped and yield. The trial court correctly denied the other jury instruction since it did not accurately state the law.
. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR.
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