                    IN THE SUPREME COURT OF MISSISSIPPI

                            NO. 2000-CA-00692-SCT



CLASSIC COACH, INC. AND ALBERT RUSH, SR.
v.
JAMES JOHNSON, INDIVIDUALLY, AND ON BEHALF OF APRIL JOHNSON AND
JENNA JOHNSON, MINORS, MARLENE JOHNSON, JULIE JOHNSON AND ALL
HEIRS-AT-LAW OF MATTHEW JOHNSON, DECEASED



                           CONSOLIDATED WITH

                            NO. 2000-CA-00694-SCT



CLASSIC COACH, INC. AND ALBERT RUSH, SR.
v.
RACHEL McBRIDE, NEXT OF KIN, HEIR AND ADMINISTRATRIX OF THE ESTATE
OF LARRY McBRIDE, DECEASED, INDIVIDUALLY AND WRONGFUL DEATH
BENEFICIARY OF LARRY McBRIDE, DECEASED



DATE OF JUDGMENT:         12/21/1999
TRIAL JUDGE:              HON. JOHN L. HATCHER
COURT FROM WHICH          TUNICA COUNTY CIRCUIT COURT
APPEALED:
ATTORNEYS FOR             CHRISTOPHER J. AUBERT
APPELLANTS:
                          JAMES PHILIP MEYER

                          DARREN MILTON GUILLOT

                         ROBERT SHIELDS CRUMP
ATTORNEYS FOR APPELLEES: D. BRIGGS SMITH

                          CLARENCE MCDONALD LELAND

                          JERRY JOHNSON
NATURE OF THE CASE:       CIVIL - PERSONAL INJURY
DISPOSITION:                         AFFIRMED IN PART; REVERSED & REMANDED IN PART -
                                     08/01/2002
MOTION FOR REHEARING
FILED:
MANDATE ISSUED:                      8/22/2002



     BEFORE PITTMAN, C.J., DIAZ AND EASLEY, JJ.

     EASLEY, JUSTICE, FOR THE COURT:

¶1. James Johnson, individually and on behalf of April Johnson and Jenna Johnson, Minors, Marlene
Johnson, Julie Johnson and all heirs-at-law of Matthew Johnson, deceased (Johnsons) and Rachel
McBride, Next of Kin, Heir and Administratrix of the Estate of Larry McBride, deceased, individually and
wrongful death beneficiary of Larry McBride (McBrides) filed separate actions in Tunica County against the
Mississippi Department of Transportation (MDOT), Mississippi Department of Public Safety (MDPS),
Classic Coach, Inc. (Classic Coach), and Albert Rush, Sr. (Rush), alleging negligence, wrongful death and
loss of consortium. On February 15, 1999, the cases were consolidated for non-jury trial before Circuit
Judge John L. Hatcher. On January 4, 2000, the trial court issued separate judgments in favor of the
Johnsons and the McBrides against Classic Coach, Rush, and MDOT. The trial court then assessed total
damages in the amounts of $2,600,000.00 for the McBrides and $2,000,000.00 for the Johnsons. In
rendering judgment, the trial court apportioned fault as follows: 10% against Larry McBride (Larry), a non-
party tortfeasor, 54% against Classic Coach and Rush and 36% against MDOT, for a total apportionment
of fault of 100%. On April 24, 2000, Classic Coach and Rush appealed the judgments of the trial judge.

¶2. Because of the MTCA statutory cap on damages against governmental entities, MDOT was only
required to pay $50,000.00 to the McBrides and Johnsons, and have thus, settled out of court and are no
longer a party to this matter. MDOT's withdrawal from this appeal has been granted by this Court.

                                                 FACTS

¶3. On December 13, 1993, in the early morning hours after 3:00 a.m., a fatal collision occurred at the
intersection of U.S. Highway 61 and Highway 304 in Tunica County when a car driven by Larry collided
with a commercial passenger bus operated by Rush and owned by Classic Coach. Larry and Matthew
Johnson (Matthew), the passenger in the car, died as a result of the accident.

¶4. At the time of the accident, U.S. Highway 61 was a two-lane federal highway which ran north to south
while Highway 304 was a two-lane state highway which ran east to west. Highway 304 intersected U.S.
Highway 61 at approximately a one hundred thirty-five (135) degree angle in a northeast to southwest
direction. U.S. Highway 61 was also considered to be a "through" highway as determined by the placement
of stop signs at both entrances to the intersection from Highway 304.

¶5. Prior to this accident, the stop sign directing west bound traffic on Highway 304 had been knocked
down in an unrelated accident. The fallen stop sign was reported as irreparable to the Mississippi Highway
Patrol and the MDOT, but the sign was not replaced until after the accident in question.
¶6. On the night of the collision, Rush was driving the forty-foot-long passenger bus north on U.S. Highway
61 toward its intersection with Highway 304. Larry and Matthew were traveling west on Highway 304 in
Larry's 1994 Honda Prelude. Rush first noticed Larry's car when it was approximately 160 to 200 feet
from the intersection, and he stated he continued to watch for the approaching car as well as other cars
coming from the east and the west on Highway 304. As Rush neared the intersection, he removed his foot
from the accelerator and placed it over the brake. Rush then observed the lights of Larry's car "raise"
indicating that Larry was not going to stop, but at this point the cars were only two feet from the
intersection. Rush then locked his arms to the steering wheel and, for the first time since approaching the
intersection, he applied the brakes as the bus and car collided.

¶7. After the accident samples of Larry's and Matthew's blood and urine were collected to be used in drug
screens conducted by the Mississippi Crime Laboratory. Both samples of blood were positive for
methamphetamine, and both samples of urine were positive for amphetamines, methamphetamine and
marijuana. One expert testified Larry most likely ingested the methamphetamine six to twelve hours before
the accident and was under the influence of the drug at the time of the accident. The Crime Lab destroyed
the samples before the quantity of methamphetamine in Larry's blood could be determined. Without a
specific quantity of methamphetamine, neither expert could reach a conclusion as to what effect, if any, the
drug had on Larry; therefore, the trial judge disregarded all evidence and testimony concerning the
decedents' blood and urine samples.

                                                DISCUSSION

      I. Whether the Substantial Credible Evidence Presented on Record Supported the Trial
      Judge's Allocation of Fault for Each Tortfeasor.

¶8. This Court reviews the factual determinations made by a trial judge sitting without a jury using the
substantial evidence standard. Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of
God, Inc., 716 So. 2d 200, 204 (Miss. 1998) (citing Hill v. Thompson, 564 So.2d 1, 10 (Miss. 1989);
UHS-Qualicare v. Gulf Coast Community Hosp., Inc., 525 So.2d 746, 753 (Miss. 1987)). "We will
not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused
his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Id.
(citing Herring Gas Co. v. Whiddon, 616 So.2d 892, 894 (Miss. 1993); Broadhead v. Bonita Lakes
Mall, Ltd. Partnership, 702 So.2d 92, 96 (Miss. 1997)).

¶9. Contrary to the belief of Classic Coach and Rush, the trial judge did not allocate fault in excess of one
hundred percent. Instead of finding fault in terms of total damages, the trial judge allocated fault in terms of
recoverable damages. The trial judge found Classic Coach to be 60% liable for the "remaining recoverable
damages." Recoverable damages are the total damages minus any damages allocated to other parties.
DePriest v. Barber, 798 So. 2d 456, 459 (Miss. 2001). Because Larry, as a non-party tortfeasor, was
found to be 10% liable, Classic Coach was then found to be only 54% liable for the Johnsons' and
McBrides' total damages (60% liable for the remaining recoverable damages of 90%). Following the same
logic, the MDOT was found to be only 36% liable, not 40%. Throughout the remainder of this opinion, this
Court will refer to Classic Coach's percentage of fault as 54% liable for the Johnsons' and McBrides' total
damages.

¶10. Classic Coach contends that the trial judge was manifestly wrong in allocating 54% of the fault it while
only allocating 36% to the MDOT and finding Larry only 10% contributorily negligent. Classic Coach
argues that MDOT and Larry alone were the sole contributors to the accident in question. The MDOT
failed to promptly replace a stop sign at an intersection which was known to be dangerous. Larry failed to
observe several signs and warnings of the approaching intersection, and thus, failed to yield the right of way
to Rush and the passenger bus. Classic Coach asks that this Court consider, based on the evidence,
increasing the allocation of fault of the MDOT and of Larry and in turn decreasing their own liability.

¶11. Because the MDOT has been released from this suit, it is not necessary to address the specific issues
raised in its brief, but its negligence and allocation of fault will be discussed.

      A. The Negligence of MDOT

¶12. On December 11, 1993, approximately two days before the accident in question, an unrelated
accident occurred at the intersection of U.S. Highway 61 and Highway 304 in which the stop sign
controlling west bound traffic on Highway 304 was knocked down. The Mississippi Highway Patrol and the
MDOT were informed of the situation. Both departments knew of the dangerousness of the intersection, but
unfortunately the stop sign was not replaced until after the December 13 wreck.

¶13. Although replacing traffic control signs is a discretionary duty of the MDOT, it did have a duty to warn
the drivers of dangerous conditions of which it had notice. Jones v. Miss. Dep't of Transp., 744 So. 2d
256, 263 (Miss. 1999). According to Miss. Code Ann. § 63-3-301 (1996), a manual and specifications
for traffic control devises used on highways shall be adopted by the public safety commissioner. Miss.
Code Ann. § 63-3-303 (1996), further states the public safety commissioner shall also conform to its
manual and specifications in placing and maintaining those traffic control devices on the highways. At trial it
was undisputed that the official manual and specifications adopted by the MDOT was the Manual of
Uniform Traffic Control Devices (MUTCD) which stated stop signs which were knocked down or
damaged were to be replaced without undue delay. The stop sign was not replaced until over thirty hours
after the initial accident occurred on the night of December 11, 1993.

¶14. Officer Andrew Richardson (Officer Richardson) handled both accidents occurring at the intersection
of Highway 304 and U.S. Highway 61. After the accident occurred on December 11, 1993, Officer
Richardson immediately placed a call to Matt Newson (Newson) of the Highway Patrol to report the
downed stop sign. Following proper procedure Newson placed a call to Jimmy McGregory (McGregory)
in the Batesville MDOT office. McGregory pinned a note to the message board reporting the downed stop
sign in Tunica. In his deposition, McGregory stated that he told Newson the sign would be replaced on
Monday. After Newson spoke with McGregory, he called Officer Richardson to inform him the MDOT
had been notified, but there is no mention in the record Officer Richardson was told the sign would not be
replaced until Monday. Officer Richardson left the scene with one of the drivers without taking any
precautionary measures to warn any of the traffic of the missing stop sign.

¶15. Kelvin Norwood (Norwood) of the MDOT testified that although it was his duty to patrol the
highways for signs which had been damaged or knocked down, it was not his custom to patrol on
Saturdays or Sundays. Derry Williams (Williams), who was also employed by the MDOT, traveled on
Highway 304 the night of December 11. Williams testified that although he did notice the directional signs
had been knocked down as a result of an accident, he did not notice that the stop sign had been knocked
down as well. Williams did not report the situation to his superiors. Walter Lyons (Lyons), a representative
of the MDOT, testified that in his opinion Officer Richardson should have stayed at the scene when the stop
sign was knocked down or, at the very least, Officer Richardson should have continued to check on the
status of the replacement stop sign.

¶16. After reviewing all the evidence presented at trial, the trial judge found MDOT to be 36% liable for the
accident which occurred on December 13, 1993. Although the MDOT claimed immunity from any liability,
the trial judge found the failure to replace a stop sign without undue delay which controlled traffic for a
intersection known by the MDOT to be dangerous constituted negligence and, thus, immunity could not be
claimed. As stated above, this Court may not overturn a trial judge's finding of fact unless it is shown that
the trial court was manifestly wrong in its decision. This Court is unable to find any such manifest error by
the trial judge and affirms its allocation of fault of 36% to the MDOT.

      B. The Negligence of Larry McBride and James Johnson

¶17. Larry and Matthew were traveling west on Highway 304 on the morning of December 13, 1993, after
having spent the evening in Memphis looking for prospective employment. This was an unfamiliar highway
to Larry, and there were no lights on the road. On his way to the intersection, Larry passed several warning
signs indicating he was approaching an intersection. A "stop ahead" sign and an intersection or junction sign
were both located several hundred feet from the intersection. Highway 304 also began to widen to allow
traffic to merge with U.S. Highway 61. Classic Coach also mentioned several other signs and occurrences,
but many of these warning signs were deemed to be in disrepair and unrecognizable at trial, even by Officer
Richardson. As Larry approached the unfamiliar intersection and with no stop sign to indicate his duty to
stop, Larry proceeded through the intersection without yielding the right of way to the oncoming passenger
bus.

¶18. According to Miss. Code Ann. § 63-3-805 (1996), Larry as a driver on an inferior street has the duty
to yield the right of way to through street traffic which poses an immediate hazard. In McKinzie v. Coon,
656 So. 2d 134, 141-42 (Miss. 1995), this Court determined an immediate hazard exists when a vehicle is
100 to 200 feet from the intersection. Rush testified that he first became aware of Larry's car when he was
approximately 160 to 200 feet from the intersection. Rush also testified that he became aware that Larry
was not going to stop at the stop sign when the cars were only two feet from the intersection. According to
the standard in McKinzie, an immediate hazard was created when Rush first became aware of Larry's car;
and therefore, Larry should have yielded the right of way to the passenger bus. Id. at 141-42. Larry acted
negligently when he failed to yield the right of way to Rush and the passenger bus.

¶19. In determining Larry's percentage of fault Classic Coach argues the trial judge was clearly erroneous in
disregarding the evidence of drugs found in Larry's and Matthew's blood and urine. Methamphetamine was
found in the blood and in the urine of Larry and Matthew, and amphetamines and marijuana were also
found in the urine. The trial judge ruled this evidence inadmissible as to relevancy in regards to Matthew
because he was only a passenger in the car, but he chose to hear expert testimony in regards to Larry. One
expert stated due to the presence of the methamphetamine in the blood, it was most likely that Larry
ingested the drugs six to twelve hours before the accident. Both experts agreed that the methamphetamine
most likely had some effect on Larry since it was found in his blood, but one expert indicated
methamphetamine could be used to enhance performance, stating that the drug was sometimes used to
overcome fatigue. Because methamphetamine is a stimulant and marijuana is a depressant, one expert also
stated the effects of one could have cancelled out the effects of the other.

¶20. The trial judge heard the testimony of the experts from both sides as they described the possible
effects of methamphetamine if found in a person's blood. The problem arose when the Mississippi Crime
Lab destroyed the blood samples before a quantitative amount of the drug could be determined. Without
the exact quantitative amount, neither expert could conclude with a medical certainty what influence or
effect the drug had on Larry. Without specific medical testimony upon which to rely, the trial judge
disregarded all evidence and testimony regarding drugs found in Larry's blood.

¶21. Classic Coach correctly argues that under Allen v. Blanks, 384 So. 2d 63, 67 (Miss. 1980) even the
slightest impairment can be considered when determining fault. This Court in Allen went on to hold that
consumption of even a small quantity of alcohol or drugs may significantly impair reaction time. Id.
(emphasis added). This fact may be presented to the fact finder to make him aware of the legal effects of
intoxication and to further aid him in determining if intoxication and proximate cause appear from the
evidence presented. Id. In the case sub judice, the trial judge was presented with the evidence and, finding
that no testimony directly indicated that Larry was, in fact, under the influence of the drug, disregarded all
such testimony.

¶22. Classic Coach also asserts that Matthew should have been found to be contributorily negligent by
choosing to ride in the car with Larry whom he knew to be under the influence of drugs. For the reasons
stated above, the trial court was not able to determine from the evidence that Larry was, in fact, under the
influence of any drugs. There was no evidence to show that Larry and Matthew took drugs together, and
there was also no evidence to show the amount of drugs in their blood at the time of the accident.
Therefore, Matthew could not be found negligent for riding in the car with Larry. The trial judge also found
Matthew's drug test to be irrelevant as to the question of negligence because he was a mere passenger and
not a driver. Therefore, the trial judge did not allow any testimony regarding the results of Matthew's drug
tests to be admitted into evidence.

¶23. The trial court did recognize that Larry was somewhat negligent in the accident and allocated 10% of
the total fault to him. The trial court, as finder of fact, examined all the relevant evidence and correctly found
Larry contributorily negligent. Although Larry may have been more than 10% contributorily negligent, this
difference of conclusion does not rise to the appropriate level of abuse of discretion set forth in the above
stated standard of review which would allow this court to reverse the trial court's finding.

      C. The Negligence of Classic Coach, Inc. and Albert Rush, Sr.

¶24. Although Larry was found to be negligent by failing to yield the right of way, Rush also had certain
duties as a driver. This Court has held a jury question is raised as to whether a driver who notices a car
approaching an intersection at approximately the same speed and distance is negligent in not applying
brakes before the collision. Jobron v. Whatley, 250 Miss. 792, 168 So. 2d 279, 282 (1964). In Jobron,
Whatley, the driver of one car, claimed she did not see the car approaching the intersection until her
attention was called to it by one of the passengers. Id. at 283. Once she became aware of the car, she
failed to continue to keep a proper lookout, and she also failed to keep her vehicle under proper control by
not reducing her speed as she approached the intersection. Id. at 280.

      The record shows that she saw the vehicle in time to take precautionary measures, by slowing the car
      down, by blowing the horn, or by turning the vehicle to the right or left, so that when Dr. White did
      not reduce his speed, or did not stop for the stop sign, she could still be able to avoid the collision of
      the two automobiles.

Id. at 283.
¶25. Whatley assumed she had the right of way and she assumed the other driver would stop at the posted
stop sign. Id. From these assumptions, this Court held it was proper for the fact finder to infer there was no
proper lookout. Id. at 284. The right to assume the other driver will obey the law exists only until one
knows or by exercising reasonable care should know otherwise. Id. The assumption ceases when the driver
should have seen the other car was not going to stop. Id. This Court found Whatley abused her right to
assume by not keeping her car under proper control and by not keeping a proper lookout. Id.

¶26. In the case sub judice, as he approached the intersection, Rush took his foot off the accelerator and
placed it over the brake but did not apply the brakes until he was two feet from impact. He testified that his
speed had slowed to approximately 40 miles per hour, but Officer Richardson's report indicates he was
traveling at approximately 50-55 miles per hour. There is no mention in the record that Rush made any
attempt to sound his horn to warn the oncoming car when he realized Larry was not going to stop at the
stop sign. In his deposition, Rush testified that he swerved to the left attempting to avoid hitting the car, but
at trial he stated the bus swerved on impact and he did not actively turn the bus. Rush stated he had been
taught in training that a bus was more likely to turn over if one tried to turn it. Rush breached his duties as a
driver when he failed to keep a proper lookout and when he failed to keep the bus under his control. Rush
even admitted that he was ninety percent sure that had he known Larry was not going to stop at the stop
sign, in other words had he been keeping a proper lookout, he could have avoided the accident.

¶27. According to Miss. Code Ann. § 63-3-505 (1996), the driver of a passenger bus must reduce his
speed to 45 miles per hour "during inclement weather when visibility is bad." Rush testified it had been
raining while he was inside the casino, but it had stopped by the time he left for his second trip to Memphis.
He stated he did not use his windshield wipers and his visibility was clear. A veteran highway patrolman, of
six years, testified weather was not inclement at the time he reached the scene fifteen minutes after the
accident. He stated he had to travel from several miles away at high speeds but had no problems
maintaining control of his vehicle. He also testified that he did not use his windshield wipers, nor did he need
to take shelter in his car from bad weather. He did testify that the roads were wet but indicated on his
report that they were not slick.

¶28. The only eyewitnesses who testified at trial from the passenger bus besides Rush were two gentlemen
seated at the back of the bus. The two gentlemen admitted to being passed out from a night of drinking and
gambling at the casino. The two witnesses were made aware of the accident when one hit his head on the
seat in front of him and the other fell to the floor after the impact of the crash. Each man stated after they
exited the bus the weather was bad, possibly sleeting. One man stated the windshield wipers of the bus
might have been on. He did not really look, but he just assumed they were on. No other passenger from the
bus was called to testify.

¶29. Miss. Code Ann. § 63-3-505 (1996), states a driver must also decrease his speed when approaching
an intersection or when a special hazard exists. Although Rush testified that he did not notice the stop sign
had been knocked down even though he had traveled through this intersection three times since the
December 11 accident, Rush was still aware of the dangerous propensity of the intersection. Rush had been
warned by co-workers of this specific intersection. This intersection which was known to be dangerous
created a special hazard which should have caused Rush to decrease his speed. Rush testified that he paid
more attention to the cars than he did the signs. If he had been keeping a proper lookout at this intersection,
that was known to be dangerous, it is likely that this accident could have been avoided.
¶30. At trial Rush testified that he did not have a clear view of the traffic traveling east on Highway 304
because a service station was obstructing his view causing him to continuously glance to his left to check for
oncoming traffic. He did not mention this service station in his deposition and aerial photographs clearly
show that the service station did not obstruct his line of sight. Rush was aware of Larry's car but chose to
not to keep a proper lookout as it neared the dangerous intersection.

¶31. Due to several discrepancies in Rush's testimony, the trial judge found the testimony of the two
disinterested passengers from the bus and the veteran patrolman more credible than the testimony of Rush
and allocated fault in the amount of 54% to Classic Coach.

¶32. Based on the evidence above, the trial court did not abuse his discretion in allocating fault in the
amount of 54% to Classic Coach. By not keeping a proper lookout and by not keeping his bus under
proper control by maintaining a safe speed which was required by law, Rush was negligent in his duties as a
driver. He knew of the dangerous intersection and he was aware of the approaching car, but he chose not
to keep a proper lookout for Larry's car. As stated above, this Court may not overturn a trial judge's
finding of fact unless it is shown that the trial court was manifestly wrong in its decision. This Court is unable
to find any such wrongdoing by the trial judge and affirms the trial judge's allocation of fault of 54% to
Classic Coach.

      II. Whether the Trial Judge Correctly Applied Miss. Code Ann. § 85-5-7 (1999) When
      Apportioning Liability to Each Tortfeasor.

¶33. Statutory interpretation is a question of law which this Court reviews de novo. Donald v. Amoco
Prod. Co., 735 So.2d 161, 165 (Miss.1999). Therefore, this Court is not required to defer to the judgment
or ruling of the trial judge. DePriest, 798 So. 2d at 458.

¶34. Classic Coach contends the trial judge erroneously applied Mississippi's apportionment statute, Miss.
Code Ann. § 85-5-7 (1999), when the judge entered two separate judgments, one of which held Classic
Coach joint and severally liable for one-half of the Johnsons' and McBrides' recoverable damages. Classic
Coach argues if this Court affirms the trial judge's allocation of fault, at most Classic Coach should be held
responsible for paying their direct proportion of liability, or 54% of the Johnsons' and McBrides' total
damages and should not be held joint and severally liable for any of the Johnsons' and McBrides' damages.

¶35. The issue before this Court involves the proper interpretation and application of a statute.

      The primary rule of construction is to ascertain the intent of the legislature from the statute as a whole
      and from the language used therein. Where the statute is plain and unambiguous there is no room for
      construction, but where it is ambiguous the court, in determining the legislative intent, may look not
      only to the language used but also to its historical background, its subject matter, and the purposes
      and objects to be accomplished.

Clark v. State ex rel. Miss. State Med. Ass'n, 381 So.2d 1046, 1048 (Miss.1980). Instead of trying to
determine whether the holding of the trial judge was appropriate, this Court should look to the statute's
language as guide in determining the proper outcome according to the correct application of the statute.
DePriest, 798 So. 2d at 458. The statute at issue is Miss. Code Ann. § 85-5-7 (1999) which reads in part
as follows:

      ...(2) Except as may be otherwise provided in subsection (6) of this section, in any civil action based
      on fault, the liability for damages caused by two (2) or more persons shall be joint and several only to
      the extent necessary for the person suffering injury, death or loss to recover fifty percent (50%) of his
      recoverable damages.

      (3) Except as otherwise provided in subsections (2) and (6) of this section, in any civil action based
      on fault, the liability for damages caused by two (2) or more persons shall be several only and not
      joint and several and a joint tort-feasor shall be liable only for the amount of damages allocated to him
      in direct proportion to his percentage of fault. In assessing percentages of fault an employer and the
      employer's employee or a principal and the principal's agent shall be considered as one (1) defendant
      when the liability of such employer or principal has been caused by the wrongful or negligent act or
      omission of the employee or agent....

¶36. Miss. Code Ann. § 85-5-7 (1999), enacted by the Legislature on July 1, 1989, abolished joint and
several liability over 50%, and as a compromise, kept joint and several liability only to the extent necessary
to ensure the injured party would receive 50% of the recoverable damages. Narkeeta Timber Co. v.
Jenkins, 777 So. 2d 39, 42 (Miss. 2000). "Thus, the statute serves to reduce the extent to which one
defendant could be held liable for the negligence of another." Estate of Hunter v. Gen. Motors Corp.,
729 So. 2d 1264, 1274 (Miss. 1999). This Court has held that when a defendant's share of fault is less
than 50%, under Miss. Code Ann. § 85-5-7(2), that defendant will be required to pay 50% of the
recoverable damages. Narkeeta, 777 So. 2d at 42. Furthermore, this Court should go on to conclude
under the express language of the statute, if a defendant's share of fault is greater than 50%, the defendant
"shall be liable only for the damages allocated to him in direct proportion to his percentage of fault." Miss.
Code Ann. § 85-5-7(3) (1999).

¶37. In the case sub judice, the trial judge entered two separate judgments. He first found each defendant
to be joint and severally liable for one-half of the Johnsons' and McBrides' recoverable damages. This
meant Classic Coach would be responsible for the payment of $1,170,000.00 to the McBrides and would
be responsible for the payment of $900,000.00 to the Johnsons. Secondly, the trial judge applied each
Classic Coach's, Rush's and MDOT's percentage of fault to the remaining 50% of the recoverable damages
to determine the apportioned judgment. In the second judgment, the judge ordered Classic Coach to pay
60% of the Johnsons' and McBrides' remaining recoverable damages which would equal $702,000.00 for
the McBrides and $540,000.00) for the Johnsons. Classic Coach's total payment to the McBrides,
according to the judgment rendered by the trial judge, was $1,872,000.00 which equaled 72% of their total
damages. Classic Coach's total judgment for the Johnsons was $1,440,000.00 which also equaled 72% of
their total damages.

¶38. By referring to Classic Coach's percentage of fault as sixty percent of recoverable damages, the judge
confuses the meanings of subsections 85-5-7(2) and 85-5-7(3). Subsection 85-5-7(3) strictly deals with
total damages, therefore, the trial judge should have referred to Classic Coach's percentage of fault as 54%
of total damages. Because Classic Coach was found to be 54% liable for the Johnsons' and McBrides'
total damages, subsection 85-5-7(2) should never have been applied. Joint and several liability is to be used
only to ensure the injured party will recover one-half of his recoverable damages. Because Classic Coach
was found to have a fault greater than 50%, Classic Coach by law must pay the amount of damages directly
proportionate to its allocation of fault. The Johnsons and McBrides need no protection to ensure they will
recover one half of the recoverable damages because Classic Coach, under Miss. Code Ann. § 85-5-7(3)
(1999), will pay 54% of the total damages.
¶39. There is no reversible error in the calculation of total damages, as discussed below, but the trial judge
did err in his interpretation of Miss. Code Ann. § 85-5-7 (1999). If this court finds that the trial judge
committed no manifest error in his findings of fact, Miss. Code Ann. § 85-5-7(3) (1999) shall apply.
Classic Coach was found to be 54% at fault, and because Classic Coach's liability is greater than 50%,
Classic Coach shall pay, and shall only pay, its apportioned share of the total damages to the Johnsons and
McBrides as provided in Miss. Code Ann. § 85-5-7(3) (1999).

      III. Whether the Total Damages Awarded to Each Plaintiff Were So Grossly Excessive as
      to Go Against the Substantial Credible Evidence of the Trial.

¶40. Classic Coach's final argument is the wrongful death awards granted by the trial judge were so grossly
excessive that they should be considered outrageous and thus reduced. Classic Coach argues the trial judge
erroneously relied on expert testimony regarding the national average used to determine future lost income,
expert testimony regarding the correct consumption rate to be applied to each decedent and eyewitness
testimony claiming Matthew was alive for a period of time after the accident and experienced conscious
pain and suffering. Weighing all these factors, Classic Coach argues the total damages rendered by the trial
judge were extremely excessive such that it should shock the conscience of this Court. Classic Coach asks
that these total damage awards be reduced to an amount which compares to past Mississippi wrongful
death awards.

¶41. Larry was twenty-one, newly married, and a father of an infant son when he was killed. He had
worked at Waffle House for several years, and he also played in a band. He was pursuing a major in
biochemistry at the University of Central Arkansas and had recently been asked by his professors to join
the Honors College. The total wrongful death damages awarded to the McBrides were $2,600,000.00.
The court awarded the McBrides $958,472 in present economic value of income lost leaving $1,641,
528.00 for other wrongful death damages.

¶42. Matthew was survived by his parents and three sisters. He had recently left the University of Central
Arkansas to earn money to finance his education. He had bought property which he intended to fix up and
sell as rental property. The total wrongful death damages awarded to the Johnsons were $2,000,000.00.
The court awarded the Johnsons $947,508 in present economic value of income lost leaving $1,052,
492.00 for other wrongful death damages.

¶43. C. David Channell, an expert in the field of economics, performed three analyses depending upon the
level of education each decedent would have attained in order to complete his economic impact study to
determine each decedent's earning capacity. The three approaches were based on minimum wage, average
wage for a high school graduate and average wage for a college graduate. Channell testified the average
wage for a college graduate was the most appropriate approach because there was no doubt both
decedents would graduate from college. Channell used an average starting salary of $44,307.00, which he
obtained from the 1997 Bureau of Census Table 9, for each decedent. The only difference in computation
between Larry and Matthew was the year of graduation. Channell testified that Matthew would graduate
one year later than Larry because he had chosen to sit out a semester, therefore, his work-life expectancy
would be one year less.

¶44. In a recent case, this Court set out the rebuttable presumption rule for the awarding of damages when
the base income is unknown. Greyhound Lines, Inc. v. Sutton, 765 So. 2d 1269, 1277 (Miss. 2000).
      Therefore, we hold that in cases brought for the wrongful death of a child where there is no past
      income upon which to base a calculation of projected future income, there is a rebuttable presumption
      that the deceased child's income would have been the equivalent of the national average as set forth
      by the United States Department of Labor. This presumption will give both parties in civil actions a
      reasonable benchmark to follow in assessing damages. Either party may rebut the presumption by
      presenting relevant credible evidence to the finder of fact. Such evidence might include, but is certainly
      not limited to, testimony regarding the child's age, life expectancy, precocity, mental and physical
      health, intellectual development, and relevant family circumstances. This evidence will allow the
      litigants to tailor their proof to the aptitudes and talents of the individual's life being measured. We find
      this standard to be equitable for all the parties because it allows the fact finder to take into account the
      unique circumstances of each individual person in accordance with current Mississippi case law.

Id.

¶45. In the case sub judice, the Johnsons' and McBrides' expert gave three possible averages, minimum
wage, high school graduate and college graduate from which the court could analyze the future lost income.
As the rule states in Greyhound Lines, the presumption is rebuttable. The only testimony offered by the
defense to rebut the presumption was the decedents were not college graduates, therefore, the average
used should not be that of a college graduate. The defense chose only to point out that both decedents had
maintained steady employment at Waffle House and Wal-Mart while attending school. Larry was presently
enrolled in school with the intentions of entering the Honors College at the request of his professors.
Matthew had recently decided to sit out a semester to earn money to pay for his education by restoring
rental property. After reviewing all the evidence the trial judge agreed with the expert that the college
graduate average was the best average to use when calculating the future lost income of both decedents.

¶46. Classic Coach also questioned the Johnsons' and McBrides' expert's use of consumption rate with
regards to Matthew. Channell used the same 30% personal maintenance expenditure percentage for each
decedent even though Larry was married with a child and Matthew was not married, did not have a
dependent but may have had a roommate. Channell testified that he used Earl Cheit's report which is based
on families of two or more for Matthew as well as Larry because he believed Matthew had a roommate.
Channell also stated he did not agree with the reports used by the defense showing a personal maintenance
expenditure percentage calculated for a single person at 67% because the reports included expenses which
were otherwise not living expenses and did not take into account other adjustments which should be made.

¶47. In Greyhound Lines, this Court also looked at the question of the use personal maintenance
expenditure percentage, or consumption rate as it was called, when computing the future lost income. The
consumption rate was held to be "another factor which may be argued by the parties to the finder of fact in
support of increasing or decreasing the presumption that the deceased child's income would have been
equivalent to the national average." Greyhound Lines, 765 So. 2d at 1279. This Court held it could be
argued by both parties, and the credibility would be determined by the finder of fact. Id. In Greyhound
Lines, Channell based his testimony on Earl Cheit's study and used a personal maintenance allowance of
30% for the deceased children. Id. The chancellor agreed with his findings and he rendered his verdict
accordingly. Id. The chancellor's verdict as to damage awards for the deaths of the children, which was
erroneously reversed by the Court of Appeals, was reinstated by this Court. Id.

¶48. Classic Coach argues even if this Court finds the future lost income awards rendered by the trial judge
are supported by the evidence, the remaining wrongful death awards should shock the conscious of this
court. Classic Coach illustrates by Mississippi case law the precedent this Court has followed in awarding
wrongful death damages in cases such as the case sub judice. The most recent case cited was in 1974. This
Court has expressed its disapproval for using such outdated cases when it stated, "It is true that just a few
years ago a judgment for half the size of these verdicts would have been considered excessive, but that was
before 5 cents magazines sold for 50 cents and $25 suits sold for $100." Kinnard v. Martin, 223 So. 2d
300, 302 (Miss. 1969). This Court has also described the great difficulty a court is often faced when
deciding the excessiveness of a verdict.

      Dealing with the amount of verdicts is one of the most troublesome questions with which the courts
      have to struggle. There is no exact yardstick, or measurement, by which to test the question. Each
      case must depend upon its own facts. The test is not what amount the members of the court would
      have awarded had they been upon the jury, or what they, as an appellate court, think should have
      been awarded, but whether the verdict is so excessive as to indicate that the jury was animated by
      passion, prejudice, or corruption. We think the verdict was large, but considering all the
      circumstances, including the age of the plaintiff, we are not able to say the amount of the verdict was
      the result of passion, prejudice or corruption.

Peerless Supply Co. v. Jeter, 218 Miss. 61, 65 So. 2d 240, 243 (1953).

¶49. In addressing Matthew's pain and suffering, the trial judge stated in his findings of fact that he did not
allocate any certain monetary amount for pain and suffering. He only considered it along with the other
wrongful death elements when he determined the total damages award. Two eyewitnesses from the scene
testified. When asked if either of the passengers' physical condition could be determined, Curtis Boyd
(Boyd), an eyewitness from the bus, testified he could tell the driver died instantly but the passenger was
"still alive, trying to exit the vehicle slowly but was seriously hurt." Boyd stated he was approximately 10 to
15 feet from the car when he observed Matthew. Another eyewitness from the bus, Ronald Flowers
(Flowers), testified he heard Matthew moaning and saw him moving in the car. He stated that he was
approximately five to seven feet from the car and the area was well lit. Flowers did state that he was not
aware if Matthew was conscious of his surroundings. At trial Officer Richardson stated Matthew had been
removed from the car by the paramedics who informed him that Matthew had not survived the accident.
Officer Richardson also stated that he interviewed people at the scene, but no one made any statement to
him indicating that either one of the passengers in the car had survived the accident.

¶50. There is substantial evidence to support the amount of damages awarded by the trial judge. Recent
cases have left future lost earnings and personal maintenance expenditure percentages as questions of fact
for the fact finder. There has been no abuse of discretion in the awards rendered by the trial judge to the
families of these two very young men with such possibility for the future.

                                              CONCLUSION

¶51. The trial court did not abuse his discretion, was not manifestly wrong or clearly erroneous and did not
apply an erroneous legal standard when he determined the allocation of fault for each of the parties.
Although Larry's allocation of fault is extremely low, when viewed in light of all facts presented, the trial
court was able, by the evidence presented, to allocate fault in the manner he decided. As ultimate fact
finder, his findings should not be overturned unless this Court feels he has abused his discretion or is
manifestly wrong or clearly erroneous. This standard is clearly not met in this particular case. There is
substantial evidence on the record to support the damage awards rendered by the trial court. Therefore, the
issues of liability and damages should be affirmed.

¶52. The trial court erred when he applied Miss. Code Ann. § 85-5-7 (1999). Miss. Code Ann. §§ 85-5-
7(2) and 85-5-7 (3) were not meant to be used in conjunction to expand joint and several liability. Classic
Coach was found 54% liable and is thus responsible under Miss. Code Ann. § 85-5-7(3) (1999) for 54%
of the Johnsons' and McBrides' total damages. The case is remanded to render judgment ordering Classic
Coach to pay the McBrides 54% of the total damages in the amount of $1,404,000.00 and the Johnsons
54% of the total damages in the amount of $1,080,000.00.

¶53. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

     PITTMAN, C.J., McRAE, P.J., DIAZ AND GRAVES, JJ., CONCUR. SMITH, P.J.,
     DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY WALLER AND
     COBB, JJ. COBB, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY
     SMITH, P.J.; WALLER, J. JOINS IN PART. CARLSON, J., NOT PARTICIPATING.

     SMITH, PRESIDING JUSTICE, DISSENTING:

¶54. Common sense dictates that a driver who has ingested amphetamines and then speeds up to go
through an intersection despite numerous obvious signs of that intersection and a "stop ahead" sign should
carry more than 10% of the liability for any accident which then occurs. As I find that the majority
disregards governing laws, fair play and any notions of common sense by affirming the trial court, I
respectfully dissent.

¶55. McBride was driving west on State Highway 304. He had ingested methamphetamines within the last
six to twelve hours. The drug was still in his bloodstream. As he approached U.S. Highway 61, he passed
by numerous indicators that he was approaching a major intersection. He passed a "stop ahead" sign and an
intersection sign. The line in the middle of the road began to indicate no passing. There was a traffic island
that also had a large intersection sign on it and a white stop bar on the road prior to reaching the
intersection. Evidence was presented that McBride was not very familiar with this particular road, however,
rather than exonerating him from any liability, his unfamiliarity with the roads should actually have made him
more cautious. It is clear that part of the ordinary care that drivers are charged with should include reading
signs along the roadway. See generally Cent. Paving & Constr. Co. v. McCaskin, 183 Miss. 814, 184
So. 464 (1938); McClendon v. Boyd Constr. Co., 224 Miss 365, 80 So. 2d 32 (1955).

¶56. The trial court cited to Miss. Code Ann. § 63-3-801 for the proposition that "[t]he absence of a stop
sign places a statutory duty on Defendant Rush to yield the right of way to a vehicle entering an intersection
from the right at approximately the same time, and to yield the right of way to a vehicle which had already
entered the intersection." This would ridiculously place a burden on Rush to have known of the absence of
the stop sign. The Georgia Court of Appeals faced a similar question in an appeal from a directed verdict in
favor of a defendant. I find the logic demonstrated in this opinion applicable to the case at bar. As the
Georgia Court of Appeals noted:

     [M]otorists coming upon an intersection with a missing stop sign would not necessarily appreciate that
     fact. Here the evidence was that travelers along Middleground Road had always had the right of way.
     In order to hold that a fact question exists as to who had the right of way at the intersection, we would
      in effect be saying that travelers on Middleground Road should somehow discern that the stop sign
      controlling traffic on the intersecting road was suddenly missing, and that they were entering an
      uncontrolled intersection. And although the travelers on Middleground Road did not have any clue
      that the stop sign was missing, there was a "stop ahead" sign on Mallard Pond Road, which Brown
      and other travelers passed before coming to the intersection. To let a jury decide if Hines was
      negligent in proceeding through the intersection under these circumstances simply defies logic and
      reason. What happened here was tragic, but that does not mean it was the result of negligence or that
      either driver was at fault. The trial court did not err in granting summary judgment in this case.

Brown v. Hines, 495 S.E.2d 592, 594 (Ga. Ct. App. 1998). Similarly, it defies logic and reason for Rush
and Classic Coach to be held liable, even more so when one considers that they have been held to be
primarily responsible for this accident.

¶57. The trial court also consistently refered to the fact that it was raining and sleeting, visibility was poor,
and the roads were wet and slick. Its determination that it was raining and sleeting rests on very shaky
ground. The only two witnesses to testify that it was raining and sleeting were two passengers on the bus.
These two passengers admitted to being too intoxicated to have driven themselves and noted that they were
asleep at the back of the bus when the accident occurred. To the contrary, Rush and investigating officer
Richardson testified that the roads were wet, but not slick, and that it was not raining or sleeting. This Court
has noted that "[t]he fact that a witness was intoxicated at the time of the events concerning which he
testifies bears upon his capacity for accurate observation and correct memory and hence is proper to be
shown in passing on his credibility." Byrd v. State, 154 Miss. 742, 123 So. 867, 869 (1929) (citations
omitted). This principle certainly does not require the fact finder to disregard the testimony of an intoxicated
witness. However, it does suggest that such intoxication affects the capacity for observation and this is even
more so when there are witnesses testifying differently. The trial judge concluded that visibility was poor
from perusing the photographs of the area taken by the police on that evening. This conclusion is in direct
contradiction of the testimony by Officer Rush, and the accident report. The trial judge then built on his
determination that visibility was poor by finding that Rush violated Miss. Code Ann. § 63-3-505, which
states in pertinent part that when entering an intersection or other areas where more caution is called for "[a]
ll...passenger buses shall be required to reduce speed to forty-five miles per hour during inclement weather
when visibility is bad." Rush testified at trial that he was probably going about 40 to 45 miles per hour once
he entered the intersection. He had reportedly told the investigating officer that he had been traveling at 50
to 55 miles per hour. Rush explained that he had been traveling at that speed, however he had taken his
foot off the accelerator upon approaching the intersection and seeing McBride's vehicle approach, and thus
he was going approximately 40 to 45 miles per hour upon entering the intersection. Nevertheless, the trial
judge deduced that visibility was poor and that Rush never decreased his speed below 50 to 55 miles per
hour.

¶58. The trial judge found that the proof at trial was insufficient to support a finding that McBride's actions
and ability to drive were affected by the drugs identified in the lab results. He further noted that at least one
expert testified that the effects of marijuana and methamphetamines could be offset by each other.
Following these observations, the trial judge decided to entirely disregard any testimony regarding
McBride's use of drugs. This was absolutely error. First, both plaintiffs' and defendants' experts testified
that any drug found in someone's system will have an effect. Plaintiffs' expert noted that this would not
necessarily be a significant effect so as to cause negligent driving. I would find that "impaired" means
"impaired." Miss. Code Ann. § 63-11-30 (1)(d) states that "[i]t is unlawful for any person to drive or
otherwise operate a vehicle within this state who...is under the influence of any drug or controlled substance,
the possession of which is unlawful under the Mississippi Controlled Substances Law..."
Methamphetamines are an unlawful controlled substance. It is uncontradicted that McBride was under the
influence of this drug at the time of the accident. Further, the law in this state is that "[v]iolations of statutes
generally constitute negligence per se." Thomas v. McDonald, 667 So. 2d 594, 596 (Miss. 1995).
Thomas further notes that

      The principle that violation of a statute constitutes negligence per se is so elementary that it does not
      require citation of authority. When a statute is violated, the injured party is entitled to an instruction
      that the party violating is guilty of negligence, and if that negligence proximately caused or contributed
      to the injury, then the injured party is entitled to recover.

Id. (citing Bryant v. Alpha Entertainment Corp., 508 So. 2d 1094, 1096 (Miss. 1987)). While it was
not imperative that the trial judge find McBride totally negligent due to the evidence of his violation of § 63-
11-30 (1)(d), it was certainly error for him to disregard this evidence entirely.

¶59. The Louisiana Court of Appeals dealt with a similar situation as the one presented in the case sub
judice in Naquin v. St. John the Baptist Police Jury, 562 So. 2d 934 (La. Ct. App. 1990). In
Naquin, a motorist filed suit against the state for injuries incurred in a collision occurring at the intersection
of two state highways. Id. at 935. The stop sign for the subordinate roadway was down, and plaintiff
continued through the intersection colliding with a motorist traveling on the favored thoroughfare. Id. The
court first noted that:

      The duty of a motorist who approaches an uncontrolled intersection with a street of equal dignity is to
      determine that he can make the crossing safely before proceeding into the intersection. Furthermore, a
      motorist approaching an intersection who actually does not have the right-of-way but who was led to
      believe the intersection is uncontrolled cannot reasonably be said to have been trapped or deluded
      into the belief that he had an unqualified right-of-way.

Id. (citation omitted). The court found that it agreed with the trial court that the missing stop sign could not
have caused the plaintiff to assume that she had the right-of-way. In doing so, the court noted that the
plaintiff had admitted she saw a "stop ahead" sign and that there was a "cross-street." Id. at 936. The court
further noted that there was a road sign indicating the highway junction prior to the intersection, and that the
backside of the stop sign controlling the traffic on the opposite side of the intersection was visible. Id.
Ultimately, the court held that the plaintiff "had a duty to keep a proper lookout as she entered the
uncontrolled intersection." Id. The same may be said in the case at bar for McBride. His lights dipped as he
entered the intersection, thus he was slowing down. While no one can ascertain what he was thinking during
that time, it can certainly be said that he had a duty as he slowed to make himself aware of this road that he
seldom traveled and to keep a proper lookout.

¶60. The Supreme Court of South Carolina asserted some general principles concerning cases regarding
"downed stop signs" in Powell v. Simons, 188 S.E.2d 386 (S.C. 1972), that I find persuasive:

      1. Once a through street or arterial highway has been properly designated and appropriate signs have
      been erected, the preferred status of the highway is not lost merely because a stop sign is misplaced,
      improperly removed, destroyed or obliterated.
      2. A motorist on a preferred highway is entitled to assume that a vehicle approaching on a secondary
      highway will stop for the intersection, unless he has knowledge of the absence of the sign, or he is
      otherwise put on notice that the vehicle on the intersecting street is not going to stop.

      3. A motorist on a secondary highway is required to stop if he has knowledge of the nature of the
      preferred highway, even though the sign is absent.

      4. A motorist on a secondary highway is not required to stop in the temporary absence of a stop sign,
      if he does not have knowledge of the character of the preferred highway, but may still be liable if he is
      otherwise negligent.

Id. at 389 (citation omitted). Here, however, the trial court found the exact opposite of the first principle, in
that he stated Highway 61 lost its favored status. This is ridiculous that the loss of a stop sign unbeknownst
to those traveling Highway 61 can cause a highway to lose its status. As to the second principle, the
evidence at trial supports that Rush was unaware until the last minute that McBride was not going to stop.
Under the third and fourth principles, McBride may not have been aware of the status of the preferred
highway, but he was certainly on notice as to the intersection coming up. While Powell found that a "stop
ahead" sign located 700 to 800 feet prior to the intersection imposed no knowledge on the plaintiff, in the
case sub judice there is much more than a single "stop ahead" sign. As previously illustrated, there were
numerous warnings concerning this intersection. In addition, McBride was otherwise negligent due to his
ingestion of methamphetamines.

¶61. It absolutely boggles the mind that Classic Coach and Rush were held predominantly responsible for
this accident. The evidence of methamphetamines in McBride's blood should not have been disregarded
completely. Further, the fact that there was a stop ahead sign, and numerous other markers that this was a
major intersection, should have put McBride on alert to at least watch closely for traffic on Highway 61.
This is much more true for McBride than it is for Rush, the bus driver. Yet, the majority holds Rush to a
very high standard, while he clearly had the right of way at the intersection. Further, the MDOT should have
more responsibility for this accident than they have been given. Leaving a known dangerous intersection
without a stop sign for more than t hirty hours is highly irresponsible. In my opinion, the trial judge and the
majority merely allow plaintiffs to hold the deep pocket accountable for the actions of the two
predominately negligent parties, McBride and MDOT. Thus, I dissent.

      WALLER AND COBB, JJ., JOIN THIS OPINION.

      COBB, JUSTICE, DISSENTING:

¶62. Despite the evidence that the driver, Larry McBride, was affected by methamphetamine and marijuana
at the time of this tragic accident, the trial court, sitting as finder of fact, erroneously disregarded this
information. It also mistakenly concluded that no evidence existed from which it could possibly infer
negligence on the part of the passenger, Matthew Johnson. Because of this reversible error, I respectfully
dissent.

¶63. The majority states that two experts both "agreed that the methamphetamine most likely had some
effect on McBride since it was found in his blood." Nevertheless, the trial court excluded from its
deliberation any evidence on the drugs found in McBride's blood and urine samples because the state crime
lab destroyed those samples before it could determine the precise quantities of the drugs in those samples.
¶64. This Court has stated that

      It is a fact capable of judicial notice that consumption of even small quantities of alcohol may
      significantly, albeit "imperceptibly," impair reaction time. Where split seconds are critical, even a very
      slight impairment of reaction time may spell the difference between accident or no accident, between
      proximately contributing negligence or the lack of it.

Allen v. Blanks, 384 So. 2d 63, 67 (Miss. 1980). At issue in Allen was a jury instruction to find the
defendant negligent per se if she had driven under the influence of alcohol. Id. at 65-66. We considered that

      the only consequence of giving the instruction is to call the jury's attention to the relevant evidence as
      to whether the driver was intoxicated and further as to whether the intoxication, if any, proximately
      contributed to the accident. An instruction of the kind offered by [the plaintiff] does not, as [the
      defendant] suggests, bind the jury to a finding of negligence. It simply indicates the legal effect
      of findings of intoxication and proximate cause, leaving entirely to the jury the factual question of
      whether such intoxication and proximate cause appears from the evidence presented.

Id. at 67 (emphasis added). There was no evidence of blood-alcohol level in the record (a breath test
having been excluded on statutory grounds), but evidence was offered that a half-empty gallon jug of wine
was in the defendant's car and that officers at the accident scene detected the scent of alcohol hanging about
the defendant. Id. at 64. We concluded that exclusion of the instruction was reversible error, and that the
questions of whether or not the defendant was intoxicated and whether or not that intoxication was a
proximate cause of the accident were within the jury's province. Id. at 68.

¶65. Allen was followed by this Court in, among other cases, Mills v. Nichols, 467 So. 2d 924, 929
(Miss. 1985) where we held that "the plaintiff's own admission that he had consumed several beers in the
hours preceding the accident formed a sufficient evidentiary basis for submitting the question to the jury in
this case, notwithstanding the absence of alcohol on his breath, and liquor bottles in his car." This case is
even more pertinent than Allen, since mere evidence of consuming the intoxicant some hours before the
accident was sufficient to create a jury question.

¶66. It is unclear how the majority can mention Allen and yet uphold the trial court's ruling in the present
case. The majority correctly states that, in Allen, we held "that consumption of even a small quantity of
alcohol or drugs(1) may significantly impair reaction time." Maj. op. ¶ at 21 (emphasis in original). Yet the
majority goes on to state that "the trial judge was presented with the evidence, and finding that no testimony
directly indicated that McBride was, in fact, under the influence of the drug, disregarded all such
testimony." Id. (emphasis added). The evidence of drug use was actually much stronger here than the
evidence of alcohol use in Allen, and leads to the conclusion that the trial court followed an incorrect legal
standard in deciding whether to consider the evidence before it.

¶67. For the finder of fact to impose such an incorrect legal standard on the conclusions which may be
drawn from the evidence is reversible error. See Schmitt v. State, 560 So. 2d 148, 151 (Miss. 1990) (this
Court "gives no deference to findings of the trial court, if the trial court applied the wrong legal standard in
reaching its decision"); Leatherwood v. State, 539 So. 2d 1378, 1387 (Miss. 1989) ("[f]actfindings made
under an erroneous legal standard are not protected by our substantial evidence clearly erroneous standard
of review"). Allen and Mills are explicit in holding that the finder of fact need not have expert testimony on
the exact quantity and effect of the intoxicant to a medical certainty.(2) Therefore the trial court should not
have flatly ignored the evidence because it lacked "specific medical testimony" in the form of an "exact
quantitative amount." No such amount is required for a jury, or a judge sitting as trier of fact, to find that a
person was intoxicated and that the intoxication was a proximate cause.

¶68. Of course, the finder of fact is entitled to evaluate the evidence and conclude that it does not rise to the
level of a preponderance favoring intoxication or proximate cause. I do not, however, believe it is proper
for the court as finder of fact to "disregard" the evidence altogether. This is not a merely verbal distinction.
There is a great difference between weighing the evidence and finding it wanting, versus choosing not even
to regard or consider the evidence. "Disregard" is a term of art in this context. See, e.g., Jones v. Wiese,
652 So. 2d 175, 178 (Miss. 1995) (jury instruction stated that the "court instructs the jury that any evidence
which tends only to show a possibility is no evidence at all and must be disregarded by you in reaching
your verdict") (emphasis added); cf. Black's Law Dictionary 472 (6th ed. 1990) ("to leave out of
consideration; to ignore"). It is reversible error for the trial court to instruct the jury to disregard evidence
which it should have been allowed to consider. Clark v. State, 514 So. 2d 1221, 1224 (Miss. 1987).
There is no reason why it should not likewise be reversible error for the trial court sitting as finder of fact to,
in effect, instruct itself to disregard evidence which should have been considered under the correct legal
standard.

¶69. I also find error in the trial court's determination that no evidence existed to show that Matthew
Johnson, the passenger, could be inferred to have known that McBride had been taking drugs. Our case
law recognizes that a finder of fact may assess passengers with some degree of fault when they ride with
someone whom they reasonably should know to be under the influence of intoxicating substances. Miss.
Power & Light v. Lumpkin, 725 So. 2d 721, 732 (Miss. 1998). The assertion that the trial court had no
evidence to infer McBride's being under the influence of drugs has already been refuted. Further, a
contradiction arises between the majority's stated reasons for agreeing that the trial court properly excluded
any consideration of Johnson's percentage of fault. The majority first states that there was no evidence that
McBride and Johnson had taken drugs together (notwithstanding the fact that Johnson's own post-mortem
drug test revealed evidence of amphetamines, methamphetamine, and marijuana, the same drugs that were
in McBride's system). The majority then states that Johnson's drug test was irrelevant to any negligence
finding, because he was a mere passenger. Given the circumstance that the two men had "spent the evening
in Memphis looking for prospective employment," the trial court should have recognized how unlikely it
would be that the two men, unbeknownst to each other, had coincidentally ingested the same drugs over the
course of a long evening of job hunting.(3)

¶70. I would reverse and remand for a new allocation of fault in which the finder of fact weighs the evidence
of drugs in McBride's system and considers whether Johnson should be assessed a percentage of fault for
his own negligence in riding with McBride.

      SMITH, P.J., JOINS THIS OPINION. WALLER, J., JOINS THIS OPINION IN PART.

1. Although Allen does not specifically mention "drugs," the majority is correct to infer that what applies to
alcohol should a fortiori apply to other drugs.

2. It would be up to the finder of fact to evaluate the expert's opinion that "the effects of one could have
cancelled out the effects of the other." (Does that mean that one can escape the ill effects of drug use, if only
one takes enough countervailing drugs?)
3. The finder of fact's conclusions are further called into question by observing that December 13, 1993,
was a Monday; thus the accident occurred at 3 a.m. on a Monday morning after a Sunday night allegedly
spent looking for gainful employment in Memphis.
