Lynch v. Suthoff

220 So. 2d 593
CourtMississippi Supreme Court
DecidedFebruary 24, 1969
Docket45162
StatusPublished
Cited by11 cases

This text of 220 So. 2d 593 (Lynch v. Suthoff) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lynch v. Suthoff, 220 So. 2d 593 (Mich. 1969).

Opinion

220 So.2d 593 (1969)

Sam LYNCH
v.
Joseph Mitchell SUTHOFF.

No. 45162.

Supreme Court of Mississippi.

February 24, 1969.
Rehearing Denied April 7, 1969.

*594 Watkins & Eager, Elizabeth Hulen, James A. Becker, Jr., Jackson, for appellant.

Poole & Marks, Riddick & Nobles, Jackson, for appellee.

INZER, Justice:

This is an appeal by Sam Lynch from a judgment of the Circuit Court of the First Judicial District of Hinds County awarding appellee, Joseph Mitchell Suthoff, $62,500 as damages for personal injuries growing out of a collision between an automobile operated by Lynch and a motorcycle operated by Suthoff. We affirm.

The collision occurred about 7 p.m. on November 22, 1966, in the City of Jackson at the intersection of Voorhees Street and Robinson Road. Robinson Road at this point is a four lane street and runs in an east-west direction. Voorhees Street is an unmarked, two lane, residential street running north-south which dead ends into Robinson. At this point Robinson is well lighted and is a major traffic artery of the City of Jackson. Appellant was returning to his home from a trip to a local grocery store. His home is located on Voorhees Street and in order to reach it he had to make a left turn off Robinson onto Voorhees. As appellant approached the intersection he was traveling about 15 miles per hour in the inside or southern lane for traffic going west on Robinson. Appellee on his motorcycle was approaching the intersection from the west. Appellant testified that as he approached the intersection he gave a left turn signal with his light and slowed to about 8 miles per hour. He said he saw an automobile approaching the intersection from the west at a distance of about 75 to 100 feet, but continued to make the left turn without stopping. He testified that he did not see the motorcycle at that time and never did see it until the instant of the collision. He did not say that he continued to look for traffic approaching from the west as he made his left turn which was to take him across two lanes of oncoming traffic. When asked if he began his left turn before reaching the center of the intersection he was unwilling to say that he definitely did not cut the corner because he did not know. However, he did finally say that he did not think he turned illegally because he usually turned at the center of the intersection. He admitted the collision occurred in the south lane for east bound traffic on Robinson and that the collision was nearly head-on.

Appellee testified that he was returning home after a visit to his mother's. He said he was sure that the lights were burning on his motorcycle. Before reaching the intersection he overtook a car that was traveling in the inside or north lane of the east-bound traffic on Robinson. He passed this car in the south lane next to the curb and continued towards the intersection. The car he passed was driven by the witness Dean and was evidently the car the appellant testified he saw approaching before he made his left turn. Appellee testified that he was traveling at a speed of between 35 and 40 miles per hour as he approached the intersection. He was looking ahead and did not see appellant's automobile until it loomed up in front of him in his lane of traffic. He did not remember anything else that happened until he regained consciousness in the hospital sometime later. Appellee *595 suffered severe, painful and permanent injuries as a result of the accident.

There were no other eye witnesses to the accident. Dean testified that he was talking with a passenger and that they were not paying attention and could not testify as to how the accident happened. He did testify that appellee was exceeding the speed limit of 30 miles per hour when he passed his car.

The accident was investigated by Officer R.C. Wells of the Jackson Police Department. Wells had several years experience as a police officer and had been attached with the accident investigation division for about a year. He estimated that he had investigated over a thousand accidents. He arrived at the scene of the accident about 20 minutes after the collision. He found appellant's automobile resting next to the curb headed south on the wrong side of Voorhees Street. Appellee was found severely injured on the southeast corner of the intersection. The motorcycle was just to the east of the center of Voorhees and just south of the curb line of Robinson if extended across the intersection. The officer positioned these findings on a map that was placed in evidence. This testimony is not complained of on appeal. However, the trial judge allowed the patrolman not only to testify as to the debris found but also allowed him, over the objection of the appellant, to fix the point of impact, and to depict this point on the map by drawing and outline of the automobile showing its assumed direction. The following illustrates the finding of the trial judge on this point.

Q. All right. Were you able from your investigation to determine what the point of impact was?
BY MR. BECKER.
Your Honor, I object to that.
BY THE COURT.
If he was able to determine it by debris and other things, he may describe how he determined it, and if he meets the qualifications he may testify.
A. May I refer to my notes that I taken at the time of the accident and later on?
BY MR. POOLE (continuing)
Q. Yes, refer to your notes and tell us what if any debris or other material you were able to find so as to determine the exact point of impact.
BY MR. BECKER.
Your Honor, I object to counsel leading, and I think the rule is the witness may testify as to what he found, but as to his conclusions, he's not a trained accidentologist to determine an exact point of impact.
BY THE COURT.
He may testify as to what he found. I don't think the question was leading. That's what he was asked. If he meets the qualifications it would be competent. I will permit him to tell what he found, how it was positioned, and other things.

The principal assignment of error argued on this appeal is the trial court's admission into evidence of the opinion of the city patrolman as to the point of impact and the admission of the map depicting the assumption of the patrolman as to the directional position of the automobile at the time of the impact. This action on the part of the trial court was error. Jones v. Welford, 215 So.2d 240 (Miss. 1968); Hagan Storm Fence Co. of Mississippi v. Edwards, 245 Miss. 487, 148 So.2d 693 (1963); Schumpert v. Watson, 241 Miss. 199, 129 So.2d 627 (1961); and Carruth v. Griffis, 220 Miss. 541, 71 So.2d 478 (1954). All Justices are in agreement that this action on the part of the trial court was error, but there is disagreement among us as to the effect of the admission of this evidence. All Justices except Justice Rodgers are of the opinion that the admission of this evidence was harmless error. Chief Justice Ethridge *596 and Justices Jones, Brady, Patterson and Smith are of the opinion that the admission of this evidence was harmless in this case because the negligence of appellant was clearly established by other evidence.

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Bluebook (online)
220 So. 2d 593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lynch-v-suthoff-miss-1969.