
    Dineah Mae ROSS v. David MILLER.
    No. 53893.
    Supreme Court of Mississippi.
    Dec. 7, 1983.
    Richard E. Wilbourn and Wilbourn & Rogers, Meridian, for appellant.
    Thomas R. Jones and Bourdeaux & Jones, Meridian, Charles C. Pearce, Union, for ap-pellee.
    Before BROOM, DAN M. LEE and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

Dineah Mae Ross sued David Miller for personal injuries sustained by her in a pedestrian-automobile accident, alleging that Miller negligently operated his vehicle. From a jury verdict for the defendant Miller in the Circuit Court of Newton County, the appellant appeals, alleging inter alia that the trial court erred by wrongfully instructing the jury as to the duties of a pedestrian. On that ground we agree with the plaintiff, and find reversible error.

The appellant assigns three errors:

(1) That the jury verdict was against the overwhelming weight of the evidence;

(2) That the refusal to admit hospital records under Mississippi statutory authority was error, and

(3) That the granting of an instruction for the defense on the duty a pedestrian crossing a roadway was error.

i.

The plaintiff, an elderly woman, was crossing a four lane street within the City of Meridian when struck by the defendant’s automobile. The evidence was disputed as to the time of night and weather conditions. The witnesses were contradictory as to whether plaintiff crossed this street at the corner of the block or within the block. It is undisputed that no crossmarks were marked for pedestrians for a distance of fourteen blocks from the scene. The defendant’s speed was twenty miles per hour. Cars were approaching from in front of his car and behind him, all with headlights on.

The plaintiff was crossing on foot a four lane street in Meridian, and had in fact crossed three of the four lanes before the defendant Miller saw her. At that point Miller testified he was thirty feet away from her and applied his car brakes on the wet pavement. Being unable to avoid hitting the plaintiff, the car struck Ross about two feet from the street’s edge with the right front fender of the Miller car. Plaintiff Ross testified that she thought she had sufficient time to cross the streets before the approaching vehicles would arrive.

II.

The appellant Ross offered into evidence her hospital records pertaining to her injury from this accident. The evidence was introduced by the local hospital’s medical records custodian. The defense objected on the ground of hearsay, and the trial court sustained the objection.

In Grenada Cotton Compress Co. v. Atkinson, 94 Miss. 93, 47 So. 644 (1908), this Court held business records admissible as an exception to the hearsay rule. See also King v. State ex rel. Murdock Acceptance Corp., 222 So.2d 393 (Miss.1969). In Grenada, supra, we held business records admissible even though some of the witnesses testifying did not make the entries, and “did not have personal knowledge of the matters about which their testimony was given, but relied upon the books for their evidence.” Id. 94 Miss, at 100, 47 So. at 646. In holding that the records should be admitted we approved the treatise which states:

The conclusion is, then, that where an entry is made by one person in the regular course of business, recording an oral or written report, made to him by one or more other persons in the regular course of business, of a transaction lying in the personal knowledge of the latter, there is no objection to receiving that entry under the present exception, provided the practical inconvenience of producing on the stand the numerous persons thus concerned would in the particular case outweigh the probable utility of doing so. [Wigmore on Evidence, § 1530].

Further, we have held that hospital records constitute business records. The basis for such conclusion rests on Mississippi statutory law and decisions.

Mississippi Code Annotated section 41-9-63 (1972) states:

All hospitals, their officers and employees and medical and nursing personnel practicing therein, shall with reasonable promptness prepare, make and maintain true and accurate hospital records complying with such methods and minimum standards as may be prescribed from time to time by rules and regulations adopted by the licensing agency.

We have interpreted the statute in the case of City of Bay St. Louis v. Johnston, 222 So.2d 841 (Miss.1969). This decision also cited with approval, 6 Wigmore, The Law of Evidence § 1707 (3rd Ed.1940).

The medical records of patients at a hospital, organized on the usual modern plan, deserve to be placed under the present principal. They should be admissible, either on identification of the original by the keeper, or on offer of a certified or sworn copy.

See also, Reynolds v. West, 237 Miss. 613, 115 So.2d 742 (1949). But see, Spears v. State, 241 So.2d 148 (Miss.1970), involving denial of right of confrontation of witnesses in a criminal case.

Therefore, the hospital records in this civil case should have been admitted under Mississippi authority, unless otherwise inadmissible.

Appellee asserts, however, that the refusal to admit the records were harmless because the jury found no liability on the part of the defendant.

We have evaluated the appellee’s argument that the excluded evidence related only to the existence and extent of damages. He contends, therefore, that the jury verdict for the defendant was a finding of no liability. The alleged error, appellee contends, is harmless and would not change the trial’s outcome.

The question here presented is whether the hospital records could have established appellee’s liability. The plaintiff claims prejudice for the exclusion of this evidence which was offered to establish liability as well as damage. However, in an examination of the proffered exhibit, we can find no merit to the assertion that these records established proof of liability. Other witnesses testified as to the fact of hospitalization, treatment, and duration of stay for the jury to consider.

We conclude, therefore, that the exclusion of the hospital records was not reversible error.

III.

The last assignment addresses an instruction granted. We find error regarding the court’s instruction on the law. Instruction D-12 is as follows:

The Court instructs the jury that a pedesterain [sic] crossing a street at any point other than within a marked crosswalk, or within an unmarked crosswalk at an intersection has the duty to yield the right-of-way to all vehicles operating on the road. If you find from a preponderance of the evidence in this case that the plaintiff, Dineah Mae Ross, was at the time of the accident complained of, walking across 8th Street at a place other than an intersection or marked crosswalk and that she failed to yield the right-of-way to the vehicle driven by the defendant, David Miller, as it travelled 8th Street and that such failure, if any, was the sole proximate cause of the accident complained of then it is your sworn duty to return a verdict for the defendant.

The appellant here testified she came “to the corner going to cross Eighth Street.” Appellee contends she crossed between the corners of the block. Admittedly, no crosswalks were marked on Eighth Street at the scene of the accident, the nearest ones being fourteen blocks away.

Appellant’s contention is that the instruction was error as it assumes a total absence of defendant’s negligence. Mrs. Ross’s contention was that Miller was at least contrib-utorily negligent in failing to keep a proper lookout.

The controlling statute, in pertinent parts, upon which this instruction is based is Mississippi Code Annotated section 63-3-1105 (1972), as follows:

(1) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.
(4) Notwithstanding the provisions of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.

The above instruction conforms to the first part of the statute, but fails to incorporate the last portion regarding the driver’s duty to pedestrians already within a roadway.

Another pertinent statute, Mississippi Code Annotated section 63-7-31 (1972), provides in part regarding vehicular equipment that headlamps must be aimed to reveal vehicles and persons at a distance of at least 350 feet ahead for the upper headlight and 100 feet for the lowermost light.

Yet Miller testified he did not see the plaintiff until he was thirty feet away from her. In Layton v. Cook, 248 Miss. 690, 160 So.2d 685 (1964), this Court stated that a driver is responsible for seeing what he should have seen. The Layton ease and Cole v. Todd, 355 So.2d 292 (Miss.1978) factually are distinguishable in that the pedestrian was off the roadway when struck. Both cases reassert the law that a driver of a vehicle was negligent in not maintaining a proper lookout for pedestrians when they are traveling alongside a highway where in the exercise of reasonable care the driver should have, but did not see the pedestrian and could have avoided the accident.

Two cases addressed by this Court involving a pedestrian being struck crossing a roadway are more applicable. In Robertson v. Welch, 242 Miss. 110,134 So.2d 491 (1961) a pedestrian was struck while crossing a national highway, but was never seen prior to being hit. The Court held that a driver had a duty to keep his car under control and be on the alert for pedestrians and other users of the highway. Citing Ulmer v. Pistole, 115 Miss. 485, 76 So. 522 (1917) and other cases. Further, a driver was to operate his vehicle at such speed as to avoid injury to persons coming within the range of his lights. Citing Jackson City Lines v. Harkins, 204 Miss. 707, 38 So.2d 102 (1948).

In Logan v. Thomas, 259 So.2d 480 (Miss.1972), a pedestrian, while crossing a city street, was hit without being seen prior to the accident. The Court formed the issue to be whether the driver should have seen the pedestrian and if so, could he have stopped her vehicle or taken other evasive action as a reasonable person to prevent the accident.

In the case sub judice, we hold the above instruction incomplete in that the driver’s duty to the pedestrian was not fully covered. Although an instruction was granted covering a motorist’s duty to keep a proper lookout, that additional instruction did not address persons coming within the range of the headlights, his duty to sound his horn, and to take such action as a reasonable man would to avoid the accident. The instruction as worded is virtually peremptory for the defendant.

We, therefore, reverse and remand for a new trial.

REVERSED AND REMANDED.

PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ., concur.

HAWKINS and BOWLING, JJ., concur in part and dissent in part.

WALKER, P.J., ROY NOBLE LEE, J., and BROOM, P.J., dissent.

HAWKINS, Justice,

specially concurring in part and dissenting in part:

I concur in this case being reversed, but I would reverse and render on liability, and remand for determination of damages.

In my view the instruction of duty to yield the right of way has no application to the facts of this case. If Mrs. Ross had just stepped from the curb into the lane of traffic of an approaching vehicle, the statute, Miss.Code Ann. § 63-3-1105 (1972), might have some application. Just the reverse was true in this case. Mrs. Ross was within one or two steps of completely crossing a four-lane street when she was struck. How on earth could she “yield the right-of-way” to a car which was at some indeterminate distance up the street when she started across? Miller’s car may have been two blocks, three blocks or out of sight over the hill when she started across the street. Mississippi also has a statute requiring a vehicle entering a through highway to yield to an automobile on the highway approaching the intersection. Miss.Code Ann. § 63-3-805 (1972). We held, however, this statute has no application where the automobile coming on the through highway had already entered the intersection before it was entered by the automobile approaching on the through highway. Jones v. Carter, 192 Miss. 603, 7 So.2d 519 (1942).

The same principle of automobiles approaching an intersection, one of which is on a through highway, and the other coming out of a minor road, applies to a pedestrian crossing a street or highway. Had Miller’s car been so close as to constitute some hazard when Mrs. Ross started crossing the street, the statute might have some application. We do not know where Miller’s automobile was, however, when she started across the street, except obviously it was some distance up the street.

Also, in my view Miller was negligent as a matter of law in failing to see the plaintiff until his car was within thirty feet of her, and the plaintiff was entitled to a peremptory instruction on liability. See Robertson v. Welch, 242 Miss. 110,134 So.2d 491 (1961).

BOWLING, J., joins this opinion.

WALKER, Presiding Justice,

dissenting:

I respectfully dissent from the holding of the majority.

In Newell v. State, 308 So.2d 71 (Miss.1975), this Court said:

The trial judge shall not be put in error for his failure to instruct on any point of law unless specifically requested in writing to do so.

308 So.2d 78.

The pronouncement in this case that the court erred in granting defendant’s Instruction D-12 which instructed the jury as to the defendant’s theory of the case according to the law as provided in Mississippi Code Annotated section 63-3-1105(1) (Supp.1983) without incorporating within his instruction that part of the statute, i.e., subsection (4) which favors the plaintiff and his theory of the case. As I interpret the opinion, in the future a plaintiff must incorporate in his instructions the law, as justified by the evidence, which would be favorable to the defendant. The reverse, of course, would be true of the defendant’s instructions.

Such a rule will surely lead to chaos.

This approach is so novel that no authority is cited in support of it in the majority opinion and my research reveals no such practice in any jurisdiction.

The universal rule is that a plaintiff presents his theory of a case by his instructions and a defendant presents his theory by his instructions and neither can complain for failure of a jury to be instructed unless a party has requested a proper instruction which was refused. Under this procedure, a jury is instructed as to the whole of the law as the parties to the suit perceive it.

I have little doubt that the new procedure will be met with wholehearted disapproval by both the trial lawyers and defense lawyers.

BROOM, P.J., joins this dissent.

ROY NOBLE LEE, Justice,

dissenting:

I think that, when all the instructions, both for the appellant and appellee, are read together, the jury was properly instructed, could not have been confused, and the Instruction D-12 did not constitute reversible error. Therefore, I dissent from the majority opinion.

The declaration pleads Sections 23-29, 23 — 10 and 23-41 of the Code of Ordinances of the City of Meridian, Mississippi, which (1) makes it the duty of the operator of any vehicle to keep the vehicle under constant control and (2) the duty of the operator of any vehicle to keep a watch for other vehicles and pedestrians and to proceed with care and caution to avoid colliding with other vehicles and pedestrians.

In furtherance thereof, the declaration charged appellee with the duty to keep his vehicle under free and easy control; to obey the traffic laws and rules of the road; to keep and maintain a reasonable lookout for other traffic and pedestrians using the street; to refrain from operating his vehicle at a fast, reckless and dangerous speed under the conditions and circumstances then existing; and charged that the appellee violated those duties owed to the appellant.

The appellee answered the declaration with a general denial of the allegations of negligence and stated as an affirmative defense that the appellant was crossing Eighth Street in the City of Meridian, Mississippi, at a place that was not marked for crossing by pedestrians, but was located in the center of the block; that appellant had the duty to yield the right-of-way to vehicles traveling on Eighth Street, but breached said duty and did not yield the right-of-way to appellee’s vehicle as she negligently crossed Eighth Street in disregard for her own safety, failing to heed the flow of vehicular traffic at said time and place; and that such negligence of the appellant was the sole proximate cause of the accident.

The evidence is practically without contradiction. The weather was rainy and the night was dark; appellant was a black woman dressed in dark clothing; she was crossing Eighth Street in the middle of the block at a point where there was no marked crossing; she was looking, down at her feet and did not look up to observe approaching traffic until she was struck; the appellee, accompanied by his wife, was driving in the outside lane of four-lane Eighth Street at a speed of not more than 20 mph; traffic was flowing in both directions on Eighth Street; appellee did not see appellant until she crossed the broken line into his lane of traffic at which time he was only 30 feet from her; appellee applied his brakes, skidded on the wet pavement, and struck appellant with the right front of the automobile.

The question and answer as to appellee’s keeping a lookout follow:

Q. All right, sir. Do you know why you didn’t see her when she was out in the center of the street?
A. The only thing I could think of was because of the rain. My windshield wipers were going. She was wearing all dark clothing and she was probably literally invisible to me at that time.
* * ⅜: ⅜ :⅜ ⅞:
A. The only reason I couldn’t see her, as far as I could tell, because of the dark clothing, because of the rain; and that’s the only explanation I could give you.

The instruction upon which the majority reverses the judgment of the lower court follows:

INSTRUCTION NO. D-12
The Court instructs the jury that a pedestrian crossing a street at any point other than within a marked crosswalk, or within an unmarked crosswalk at an intersection has the duty to yield the right-of-way to all vehicles operating on the road. If you find from a preponderance of the evidence in this case that the plaintiff, Dineah Mae Ross, was at the time of the accident complained of, walking across 8th Street at a place other than an intersection or marked crosswalk and that she failed to yield the right-of-way to the vehicle driven by the defendant, David Miller, as it travelled 8th Street and that such failure, if any, was the sole proximate cause of the accident complained of then it is your sworn duty to return a verdict for the defendant.

The first part of the instruction follows word-for-word Mississippi Code Annotated § 63-3-1105(1) (Supp.1983) which states the following:

(1) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.

It is undisputed that the appellant violated that section of the statute and, if under the facts and circumstances failure to yield the right-of-way and walk into the path of an approaching vehicle was the sole proximate cause of the accident and her injuries, then she was not entitled to recover. The jury believed that theory presented by ap-pellee’s case and returned a verdict for ap-pellee.

Pertinent instructions for appellant appear in the Appendix.

Instruction P-2A told the jury that appellant had the right to use Eighth Street in order to cross the street so long as she used reasonable care in doing so, and that her right to walk upon the street was equal to the rights of persons operating motor vehicles upon the street.

Instruction P-3 is a wide open instruction and gave plaintiff the benefit of any kind of negligence, even negligence not charged in the declaration.

Instruction P-4 told the jury that it was the duty of the appellee to drive at a reasonable rate of speed under the circumstances then existing, to keep a reasonable lookout, to keep his vehicle under reasonable and easy control, and, if the appellee failed to perform or discharge any of those duties, it constituted negligence, and the jury should return a verdict for the appellant.

Parties to a lawsuit have the right to present their different theories of liability to the jury contained in instructions which they request from the court without being required to state the theory, case, or defense of the opposite party. In the present case, the appellant (plaintiff) presented her theory of liability to the jury without stating the appellee’s (defendant) case in those instructions. Likewise, the appellee was entitled to state his affirmative defense to the jury, viz, that a person attired in dark clothing on a dark rainy night was crossing the street in the middle of the block and not at a crosswalk, and under those conditions, was invisible to motorists using the street and that as a result thereof the accident’s sole proximate cause was the negligence of the appellant.

In my opinion, the facts of the case were put squarely to the jury, which heard the witnesses, observed their demeanor, and found that her negligence was the sole proximate cause of the accident. I would not reverse or disturb the verdict of the jury and, therefore, I respectfully dissent from the majority opinion.

WALKER and BROOM, P.JJ., join in this dissent.

APPENDIX

INSTRUCTION NO. P-2A

The Court instructs the jury that Dineah Mae Ross had the right to use 8th Street in the City of Meridian in order to cross the street, so long as she used reasonable care in so doing and if you believe she was exercising reasonable care when crossing said street, then her right to walk upon said street were [sic] equal to the rights of persons operating motor vehicles upon the street.

INSTRUCTION NO. P-3

The Court instructs the jury that the defendant, David Miller, was under a duty to operate his automobile in a reasonable and prudent manner and to exercise reasonable care for the safety of the plaintiff, as well as for the safety of others using the streets, and if you find from a preponderance of the evidence that the defendant, David Miller, failed in his duty, then you may charge him with negligence, and if you believe by a preponderance of the evidence that the defendant was negligent and that such negligence, if any, proximately caused or contributed to the injuries, sustained by the plaintiff, then it is your sworn duty to return a verdict for the plaintiff against the defendant, David Miller.

INSTRUCTION NO. P-4

The Court instructs the jury that it was the duty of the defendant, David Miller, in operating his vehicle to drive at a reasonable rate of speed under the circumstances then existing. It was also the duty of David Miller to keep a reasonable lookout in front of and to the sides of his moving vehicle, and it was his duty to keep his vehicle under reasonable and easy control with the ability to stop readily and easily and to anticipate and expect the presence of others using the street at the time. If you believe from a preponderance of the evidence that David Miller failed to perform and discharge any of these duties, then that would constitute negligence, and if you believe by a preponderance of the evidence that he was negligent and that such negligence proximately caused or contributed to the injuries, if any, sustained by the plaintiff, then it is your sworn duty to return a verdict for the plaintiff against the defendant, David Miller.  