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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 96-CA-00737 COA JASON D. LEDLOW v. REEVES TRANSPORTATION, INC. AND PERRY PHILLIP VANCE APPELLANT APPELLEES

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES: 11/14/95 HON. MARCUS D. GORDON NESHOBA COUNTY CIRCUIT COURT JAMES M. MARS, II JOHN B. MACNEILL STUART ROBINSON, JR. JASON EHRLINSPIEL CIVIL - PERSONAL INJURY JUDGMENT FOR THE DEFENDANTS AFFIRMED - 10/7/97

NATURE OF THE CASE: TRIAL COURT DISPOSITION: DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:

10/28/97

BEFORE THOMAS, P.J., COLEMAN, AND KING, JJ. COLEMAN, J., FOR THE COURT: A collision occurred between a 1991 Camaro driven by Jason D. Ledlow (Ledlow) and a bobtailed truck driven by Perry Phillip Vance (Vance) for Reeves Transportation, Inc. It happened at approximately 1:30 a.m. on June 18, 1994, near the junction of Mississippi State Highways 21 and 488 in Neshoba County. Ledlow filed a lawsuit in the Circuit Court of Neshoba County against Reeves Transportation and Vance to recover damages for his injuries sustained in the wreck. The jury returned a verdict for the defendants, Reeves and Vance, and the trial judge entered judgment for them. Ledlow has appealed to argue that the trial court erred by refusing to grant a particular jury instruction, peremptory in nature, which would have established Vance's negligence "for his failure to

ascertain the location of [Ledlow's] vehicle prior to executing the left turn . . . ." The trial judge's refusing to grant this instruction was not error; we affirm the judgment for Reeves and Vance. I. FACTS Ledlow, then eighteen years old, had graduated twelfth in his class of 164 graduates from Neshoba Central High School in May, 1994. He had earned a band scholarship to attend East Central Community College that fall. To earn extra money for college, he had begun working from 3:30 p.m. until midnight at U. S. Motors in Philadelphia, Mississippi, winding metal cores of electric motors for which he earned $5.00 per hour. At midnight on June 17, 1994, Ledlow finished his shift at U. S. Motors and drove around in Philadelphia to look for his friends who might still be out past midnight. About an hour and a half later, Ledlow decided to return home and go to bed. Thus, he drove west from Philadelphia on Highway 21 to where it joined Highway 488 and then continued west on Highway 488 toward his home located several miles farther west from this junction. On that same day, June 17, Perry Vance, a thirty-five-year-old long-haul truck driver for Reeves Transportation, had driven from Runnels, Virginia, through North Carolina on his way home to Amory from a run to New York City. When Vance arrived in Amory at about 8:30 p.m. that night, his employer, identified in the record only as Red Reeves, asked Vance to continue driving his truck without a trailer, or "bobtailed," to Philadelphia to repair another truck owned by Reeves but driven by James R. Broadway. Broadway lived on the south side of Highway 488 less than one mile west of the junction of Highways 21 and 488. The truck to be repaired was parked in the front yard of Broadway's house. Once Vance arrived in Philadelphia at around 11:30 p.m., he drove to Broadway's house to get Broadway to accompany him to Alex Chipley's auto parts store so that they could get the part needed to repair the truck. With Broadway as his passenger and with Vance's wife riding in the truck's bunk, Vance stopped at Chipley's house so that they all might go to Chipley's store to get the part, an air shifter for the transmission, needed to repair the truck. Chipley's house was located on the north side of Highway 488 just west of its junction with Highway 21. Chipley's auto parts store was located in the curve of Highway 21 just off its junction with Highway 488. After Vance obtained the air shifter, or "dog," to repair the truck, Chipley returned to his home in his vehicle, and Vance, his wife, and Broadway returned west in Vance's truck toward Broadway's house. As Vance began to turn his bobtailed truck left into the driveway to Broadway's house, Ledlow had pulled his Camaro into the east-bound lane of Highway 488 to pass the truck. Ledlow's Camaro collided with the front left wheel of Vance's truck in the south lane of the highway and then careened into the left rear wheels of the truck parked in Broadway's front yard. The truck was parked in the driveway perpendicularly to the highway. The impact of Ledlow's Camaro with Broadway's parked truck knocked the parked truck fourteen feet farther west. Ledlow could not be removed from his Camaro until rescue personnel arrived with the "jaws of life," which they used to pry open the door on the passenger's side of the Camaro so that they could remove Ledlow from the car through that door. Both the fibula and the tibia in Ledlow's left leg were fractured into ten or twelve pieces just above the ankle. Because Ledlow presents but one issue in his appeal, we reserve recitation of the testimony which occurred during the trial of this case for our analysis and resolution of that issue.

II. ANALYSIS AND RESOLUTION OF LEDLOW'S ONLY ISSUE We quote Ledlow's one issue verbatim from his brief: Based solely on the defendant's testimony, it was reversible error for the trial judge to refuse jury instruction no. P-5.

Instruction P-5 read as follows: The Court instructs the jury that the Defendants, Reeves Transportation, Inc., by and through its agent, servant and employee, Perry Phillip Vance, is guilty of negligence by failing to comply with his duty to keep a proper lookout, specifically his failure to ascertain the location of the Plaintiff's vehicle prior to executing the left hand turn, and if you further find that the Defendant, Reeves Transportation, Inc. by and through its agent, servant and employee, Perry Phillip Vance's failure to comply with this duty was a proximate cause or a proximate contributing cause of the injuries and damages, if any, suffered by the Plaintiff, then your verdict shall be for the Plaintiff, Jason D. Ledlow and against the Defendants, Reeves Transportation, Inc. and Perry Phillip Vance. The record contains the following colloquy among the trial judge and the attorneys for Ledlow, Reece, and Vance about Instruction P-5 during their conference on the jury instructions: BY THE COURT: P-5? BY MR. MacNEILL: We object. It's peremptory in nature. It instructs the jury that Mr. Vance is, in fact, guilty of negligence. Also, it talks about the failure to ascertain the location of Plaintiff's vehicle, and we don't think that is a correct duty, and that is not a duty imposed by common law of Mississippi. So, for those reasons, we object to P-5. BY THE COURT: It is not a duty to look in the rearview mirror before making a turn? BY MR. MARS: We have cases. BY THE COURT: But, it is a peremptory instruction, and I am not going to give it, because it peremptorily instructs he is guilty of negligence, to keep a proper lookout. Ledlow acknowledges that Instruction P-5 is peremptory in nature, but he argues that it was taken almost verbatim from the factually identical case of Conner v. Harris, 624 So. 2d 482 (Miss. 1993),

in which the Mississippi Supreme Court reversed a judgment for the defendants and remanded the case for a new trial because the trial judge refused to grant this instruction. Id. at 483. The plaintiffappellant Conner was driving a Pontiac Sunbird behind a spreader truck which the appellee, James D. Harris, was driving north on U.S. Highway 11 in Pearl River County. When Conner drove the Pontiac into the left lane to pass the spreader truck, Harris turned left to enter a side road. Conner could not stop the car she was driving in time to avoid colliding with the spreader truck in the southbound lane of Highway 11. Id. at 482. At trial, the defendant Harris admitted that he had seen the Pontiac behind him as he crested a hill prior to his attempt to turn left onto a side road and was aware that the Pontiac was following the spreader truck. Harris further admitted that he did not look behind him before he began his turn into the side road, and he also admitted that had he looked to the rear, he would have seen the Pontiac. Id. The trial judge refused to give an instruction that was identical to the one that is at issue in the case sub judice. Id. In its opinion, the Mississippi Supreme Court cited Section 63-3-707 of the Mississippi Code of 1972, which provided in pertinent part that "[n]o person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety . . . ." Miss. Code Ann.

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