Tom Walton v. Marlen R. Owens and Yale and Towne Manufacturing Company

HUTCHESON, Chief Judge

(dissenting).

I agree with the majority that the refusal of plaintiff’s requested charge was not error. I cannot, however, agree with its conclusion that it was not prejudicial error to instruct the jury that “Mr. Walton was guilty of some negligence in this matter in driving out on the highway with a car approaching as this car was, without stopping or probably looking more than he did.”

In Mississippi, as in Georgia, “questions of negligence and comparative negligence and of what constitutes the proximate cause of the injury are ordinarily questions of fact for the jury, and their determination will not be taken from it except in palpably clear, plain and undisputed cases where the facts are established without conflict and as matter of law.” Petroleum Carrier Corp. v. Carter, 5 Cir., 233 F.2d 402, at page 405.

It seems plain to me that while, regarded as a factual discussion of the weight and preponderance of the evidence, the discussion of this point by the majority is excellent and most persuasive, *389it falls far short of convincing that the issue was one of law for the court rather than of fact for the jury. I, therefore, respectfully dissent from the affirmance of the judgment.