                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 2000-CA-00697-SCT
EDWARD JOSEPH REESE, JR. AND FARRELL THOMPSON
v.
JOHN SUMMERS d/b/a/ JOHN SUMMERS TRUCKING AND BRIAN MALLORY

DATE OF JUDGMENT:                                 02/24/2000
TRIAL JUDGE:                                      HON. DALE HARKEY
COURT FROM WHICH APPEALED:                        JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                         WAYNE E. FERRELL, JR.
                                                  ANDRE FRANCIS DUCOTE
ATTORNEY FOR APPELLEE:                            JOE CRAWFORD GEWIN
NATURE OF THE CASE:                               CIVIL - PERSONAL INJURY
DISPOSITION:                                      AFFIRMED - 08/30/2001
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                   9/20/2001

     BEFORE BANKS, P.J., WALLER AND COBB, JJ.

     COBB, JUSTICE, FOR THE COURT:

¶1. 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.(1) 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

¶2. 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.

¶3. 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?

¶4. 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, no reversible error
will be found. Fielder v. Magnolia Beverage Co., 757 So.2d 925, 929 (Miss. 1999)(collecting
authorities); see also Rester v. Lott, 566 So.2d 1266, 1269 (Miss. 1990)(The "overarching concern is
that the jury was fairly instructed and that each party's proof-grounded theory of the case was placed
before it"). Both parties have the right to embody their theories of the case in the jury instructions provided
there is testimony to support it, but only "if made conditional upon the jury's finding that such facts existed."
Murphy v. Burney, 27 So.2d 773, 774 (Miss. 1946)

.¶5. Thompson and Reese object to the inclusion of Jury Instruction 10, which reads in its entirety as
follows:

      The Court instructs the Jury that under the law of the State of Mississippi no person shall stop a
      vehicle when that person is within an intersection except when necessary to avoid conflict with other
      traffic or in compliance with the direction of a traffic control devise.(2)

      Therefore, if you find from a preponderance of the evidence, if any, that Farrell Thompson stopped
      his vehicle in the intersection of Jamestown Road and Highway 63 while the traffic light controlling
      Farrell Thompson at this intersection was green, and such action was unnecessary to avoid conflict
      with other traffic, then such action by Farrell Thompson constitutes negligence.
      If you find that such negligence, if any, was the sole proximate cause(3) of the accident in question,
      then you shall return a verdict for the Defendants, John Summers, d/b/a John Summers Trucking, and
      Brian Mallory.

      If you find this negligence proximately contributed to the damages suffered by the Plaintiffs, if any,
      then in that event you must reduce any award you might otherwise render for Farrell Thompson
      and/or Edward Joseph Reese, Jr., by the proportion of the causal negligence, if any you attribute to
      Farrell Thompson under the circumstances.

The instructions also included Special Interrogatory No. 1, which reads in relevant part as follows:

      (2) Do you find by a preponderance of the evidence, if any, that the Plaintiff Farrell Thompson was
      negligent in any manner which contributed to the accident and damages?

      ....

      (3) If your answer to question (2) above was "Yes", what percentages of negligence did you find
      attributable to Brian Mallory and Farrell Thompson? Note: Your answer should be a proportionate
      [sic] of 100%.

¶6. Thompson and Reese concede that Jury Instruction 10 does fairly state the law, but they contend that it
was unsupported by any evidence showing that their vehicle was stopped in the intersection instead of
simply at the intersection. Therefore, they reason, the instruction was erroneously given and constitutes
reversible error.

¶7. This Court disagrees. The testimony offered by Mallory and Page clearly supports the defense theory
that Thompson's pickup was within the intersection when the accident occurred, or at least creates a fact
question as to that issue. In any case, the interrogatory quoted above (to which Thompson and Reese did
not object at trial) permitted the jury to find that Thompson was contributorily negligent even without finding
that his pickup was stopped within the intersection. The instructions as a whole therefore properly announce
the law in Mississippi with regard to motor vehicles and traffic as well as to contributory negligence, and the
granting of Instruction 10 was not error, even if Thompson's vehicle was not within the intersection when it
was struck.

      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?

¶8. This Court's standard of review for the denial of judgments notwithstanding the verdict, peremptory
instructions, and directed verdicts is as follows:

      [T]his Court will consider the evidence in the light most favorable to the appellee, giving that party the
      benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so
      considered point so overwhelmingly in favor of the appellant that reasonable men could not have
      arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is
      substantial evidence in support of the verdict, that is, evidence of such quality and weight that
      reasonable and fair minded jurors in the exercise of impartial judgment might have reached different
      conclusions, affirmance is required. The above standards of review, however, are predicated on the
      fact that the trial judge applied the correct law.

Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss. 1997).

¶9. Thompson and Reese argue that a peremptory instruction was appropriate in this case because Mallory
was negligent as a matter of law. As they correctly point out, when two vehicles are traveling in the same
direction, the duty of avoiding collision generally rests with the driver of the following vehicle, and that driver
is per se negligent if he runs into the leading vehicle absent any emergency or unusual conditions. See
Thomas v. McDonald, 667 So.2d 595, 596 (Miss. 1995)(holding that whether particular circumstances
rise to level of emergency or unusual is jury question).

¶10. Thompson and Reese then assert that no unusual or emergency conditions existed at the time of the
accident. Needless to say, this assertion blithely ignores the testimony of Mallory and his companion Sean
Page that Thompson had unexpectedly stopped in front of them. In fact, the disputed questions of whether
Thompson had stopped unexpectedly or unnecessarily and whether such conduct might have constituted
negligence were virtually the only disputed issues at trial other than damages. In this Court's opinion, both of
those questions were properly considered and resolved by the jury, and the evidence offered by Thompson
and Reese that Thompson had not stopped unexpectedly was not "so overwhelmingly in favor of the
appellant that reasonable men could not have arrived at a contrary verdict." Steele, 697 So.2d at 376. This
issue is also without merit.

      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?

¶11. This Court reviews the denial of a motion for additur or a new trial for abuse of discretion, and has
stated:

      It is primarily the province of the jury to determine the amount of damages to be awarded and the
      award will normally not "be set aside unless so unreasonable in amount as to strike mankind at first
      blush as being beyond all measure, unreasonable in amount and outrageous." The party seeking the
      additur must prove his injuries, damages, and loss of income. In deciding if the burden has been met,
      we must look at the evidence in the light most favorable to the party in whose favor the jury decided,
      granting that party any favorable inferences that may reasonably be drawn therefrom.

Harvey v. Wall, 649 So.2d 184, 187 (Miss.1995) (citations omitted). This Court has granted an additur
of $10,000 or, in the alternative, a new trial where the jury had ignored the medical bills offered into
evidence and made no allowance for pain and suffering in calculating the plaintiff's damages. Maddox v.
Muirhead, 738 So.2d 742, 745 (Miss. 1999)(holding, however, that "the jury was free to accept or reject
Maddox's uncorroborated and undocumented testimony concerning lost wages and overtime").

¶12. In the case sub judice, the damages sought by Thompson and Reese included lost wages, past and
future medical bills and past and future pain and suffering. In support of these claims, they offered evidence
in the form of medical bills, testimony from their employer indicating how much they would have been paid if
they had not missed several months of work while recuperating, and testimony from Dr. Narinder Gupta
indicating that both men suffered from a number of chronic bone and muscle injuries which Dr. Gupta
attributed to the collision.

¶13. Ultimately, the jury awarded Thompson $29,800.00 in damages, which included $3,383.33 in medical
bills, $13,144.00 in lost wages, and $13,272.67 in pain and suffering.(4) The jury awarded Reese $47,
200.00, which included $7,139.23 in medical bills, with the rest apparently meant to cover both lost wages
and pain and suffering. However, Summers and Mallory sharply disagreed with Reese's assertion at trial
that he was entitled to $51,350.40 in lost wages, a figure apparently based on the assumption that, had he
not been injured, he would have worked seven days a week, twelve hours a day for the nine-month period
following the accident. Summers and Mallory also offered evidence in the form of tax returns that Reese
made $33,272 in 1994 and $17,000 for the part of 1995 in which he was able to work. As such, they
reason, Reese's jury award was meant to include his medical expenses, his lost wages, and pain and
suffering.

¶14. Viewing these factors in favor of Mallory and Summers and granting them all favorable inferences, this
Court concludes that the award of damages was not "so unreasonable in amount as to strike mankind at
first blush as being beyond all measure, unreasonable in amount and outrageous." Harvey v. Wall, 649
So.2d at 187. Admittedly, the damages were well in excess of the medical bills offered into evidence, as
well as lost wages and pain and suffering (although obviously assessed more conservatively than Thompson
and Reese would have liked). As such, the circuit court did not abuse its discretion in denying the motion
for additur or a new trial. This assignment of error is without merit.

                                               CONCLUSION

¶15. Based on the foregoing, this Court concludes that the circuit court did not err or abuse its discretion in
denying Jury Instruction 10, nor in denying all motions for peremptory instructions, judgment
notwithstanding the verdict, additur or new trial. The Court, therefore, affirms the judgment of the Jackson
County Circuit Court.

¶16. AFFIRMED.

      PITTMAN, C.J., BANKS, P.J., SMITH, MILLS AND WALLER, JJ., CONCUR. McRAE,
      P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J.;
      DIAZ, J., JOINS IN PART.

      McRAE, PRESIDING JUSTICE, DISSENTING:

¶17. The plaintiffs should have been granted a peremptory instruction, as the defendants were liable as a
matter of law; the only jury issues were the comparative fault of Thompson and the calculation of damages.
In addition, the circuit court erred when it held the passenger liable for the driver's negligence. In this case,
the jury awarded $29,800 to the driver, Thompson, and $47,200 to the passenger, Reese. Both amounts
were then reduced by 30 percent, the proportion of fault that was found to be attributable to Thompson.
This, in spite of the fact that the defendants have offered no evidence of negligence by Reese, nor could
they. He was a passenger and not at fault. Accordingly, I dissent.

¶18. Jury instruction 10 required the jury to return a verdict for the defendants if it found that Thompson's
negligence was the sole proximate cause of the accident. The circuit court erred in granting this instruction
because, as a matter of law, any negligence on the part of Thompson could not have been the sole
proximate cause of the accident. The defendants are negligent as a matter of law, independently of any
negligence on the part of Thompson. The plaintiffs should therefore have been granted a peremptory
instruction as to the liability of the defendants.

¶19. In White v. Miller, 513 So.2d 600 (Miss. 1987), we outlined the four duties of drivers such as the
defendants.

      By statute and our decisions, the driver of a vehicle following along behind another, and not
      attempting to pass, has a duty encompassing four interrelated functions: he must have his vehicle under
      proper control, keep a proper look-out ahead, and commensurate therewith drive at a speed and
      sufficient distance behind the preceding vehicle so that should the preceding vehicle stop suddenly, he
      can nevertheless stop his vehicle without colliding with the forward vehicle.

Id. at 601 (citations omitted).

¶20. In White, the plaintiff stopped to allow a vehicle ahead to turn off the street. The defendant testified
that she saw the brake lights on the plaintiff's car, and that it suddenly stopped. She attempted to brake, but
could not stop in time to avoid colliding with the plaintiff. The plaintiff testified that she was stopped in the
street for "a half a minute or more" when her vehicle was struck from behind by the defendant. Id. The
circuit court refused to grant a peremptory instruction as to the defendant's liability. We reversed, holding
that plaintiff White was entitled to a peremptory instruction on the issue of liability. In doing so, we declined
to adopt a per se rule of negligence in rear-end collisions, noting that drivers should not be automatically
liable because of "a car that suddenly darts into a driver's path ten feet in front of him." Id. at 602. However,
we did note that "[w]e have come very close to a per se rule in rear-end collision cases factually analogous
to this one." Id.

¶21. Our holding in White was consistent with prior case law. In Dean v. Dendy, 253 So.2d 813 (Miss.
1971), we held that the defendant was entitled to a jury instruction on comparative negligence while
upholding a peremptory instruction as to the defendant's liability. In that case, the defendant rear-ended a
plaintiff who stopped "very suddenly" at a cross-walk in front of a school.

      We think it is clear that Mrs. Dean was guilty of some negligence; such as, not stopping, not keeping a
      lookout, traveling too fast, not having the car under control, which negligence, at least, contributed to
      the accident and to Mrs. Dendy's injuries; and we cannot say that the court was in error in giving the
      peremptory instruction.

Id. at 815.

¶22. Likewise, in the case at bar, Mallory and his witness testified that Thompson's brake lights were on at
the time of the accident. The accident occurred in broad daylight, and there were no adverse weather
conditions at the time. Like the defendants in White and Dean, Mallory is guilty of negligence as a matter
of law for failing to maintain control of his vehicle, keeping a proper look-out, and driving at a speed and
sufficient distance behind Reese so that he could stop his vehicle should the forward vehicle stop suddenly.

¶23. When liability is established as a matter of law, peremptory instructions should be granted. "If the facts
and inferences so considered point so overwhelmingly in favor of White that reasonable men could not have
arrived at a contrary verdict, granting the peremptory instruction is required." White, 513 So.2d at 602
(emphasis added).(5) Rule 50, M.R.C.P., mandates that a directed verdict (or peremptory instruction) be
granted when any other verdict would be erroneous as a matter of law. The Comment to Rule 50 explains
that it is a "device for the court to enforce the rules of law by taking away from the jury cases in which the
facts are sufficiently clear that the law requires a particular result." The facts before us require a finding that
the defendants were negligent as a matter of law, and a peremptory instruction should have been given to
this effect.

¶24. Jury Instruction 10 also required the jury to reduce any award for Reese by the percentage of
negligence that was attributed to Thompson. The jury found the driver, Thompson, to be 30 percent at fault
for the accident, but failed to attribute any fault whatsoever to the passenger, Reese. In their brief to this
Court the defendants have not alleged that Reese was in any way negligent, nor is there any evidence of
negligence on his part. He cannot be because he was a passenger. The circuit court therefore erred when it
penalized Reese for Thompson's negligence by reducing Reese's recovery by 30 percent when he was not
at fault in any way. Reese should be compensated for the full measure of his damages.

¶25. Because the defendants' liability was established as a matter of law, the circuit court erred in failing to
grant a peremptory instruction as to their liability. The circuit court also erred in reducing Reese's recovery
because of Thompson's negligence. I would reverse and remand for a new trial or at the very least award
Reese the full measure of his damages, $47,200. Accordingly, I dissent.

      EASLEY, J., JOINS THIS OPINION. DIAZ, J., JOINS THIS OPINION IN PART.

1. Originally, Reese and Thompson filed separate complaints against Summers and Mallory. Their
complaints were consolidated by Agreed Order filed on July 17, 1996.

2. This instruction is based on Miss. Code Ann. § 63-3-901(1996), which states in relevant part:

      (1) No person shall stop, stand or park a vehicle, except when necessary to avoid conflict with other
      traffic or in compliance with the directions of a police officer or traffic control device, in any of the
      following places:

      ....

      c. Within an intersection;

      ....

3. The dissent argues that the instruction is erroneous because Mallory was negligent as a matter of law and
therefore any negligence on the part of Reese could not have been the "sole proximate cause" of the
accident. While technically accurate, this point is moot, since the jury plainly did not find Reese's negligence
to be the sole cause or even primary cause of the accident.

4. The Appellants' Brief claims that the total for pain and suffering is $15,272.67, which is apparently a
math error.

5. Peremptory instructions have the same effect as a directed verdict, although "[u]nder our Rule 50(a)
MRCP, the technically correct procedure would have been for the plaintiff to move for a directed verdict at
the conclusion of the presentation of all the evidence." White, 513 So.2d at 602 n.2.
