Volume 232 — Mississippi Reports

<bold>1. Landlord and tenant — negligence — fire loss allegedly caused</bold> <bold>by tenant's negligence — burden of proof.</bold> In landlord's action against tenant to recover for fire loss alleged to have been proximately caused by tenant's negligence, plaintiff had burden of showing that defendant had been negligent and that such negligence had been proximate cause of fire. <bold>2. Landlord and tenant — negligence — fire loss allegedly caused</bold> <bold>by tenant's negligence — instruction invoking doctrine of res</bold> <bold>ipsa loquitur — properly refused.</bold> In such case, requested instruction attempting to invoke doctrine of res ipsa loquitur was properly refused.<page_number>Page 64</page_number> <bold>3. Landlord and tenant — negligence — fire loss — evidence</bold> <bold>sustained finding that tenant had been guilty of no negligence</bold> <bold>proximately causing fire.</bold> Evidence sustained finding that defendant had been guilty of no negligence proximately causing fire and the resultant damage. Headnotes as approved by Lee, J.

<bold>1. Motor vehicles — action by passenger of automobile which</bold> <bold>collided with sprinkling truck being driven on wrong side of</bold> <bold>road at night as part of road surfacing project — evidence —</bold> <bold>sustained finding that construction contractor failed to warn</bold> <bold>motorist of dangerous obstructions on road which had been</bold> <bold>opened to unrestricted travel.</bold> In action by passenger of automobile, which collided with sprinkling truck which was being driven on wrong side of road at night as part of road surfacing project, against construction contractor and truck driver, evidence sustained finding that no effort had been made to prevent or control<page_number>Page 155</page_number> vehicular traffic over road, that surface of road was suitable for normal vehicular traffic, that no one maintained barriers, barricades, signs, flares, or other warning devices, to warn public of obstructions on road, and that project number signs at each end of project were not located or worded as to serve as warning of dangerous obstructions on road. <bold>2. Negligence — highway under construction — motorist's</bold> <bold>knowledge that highway was being prepared for paving as not</bold> <bold>absolving contractor from negligence in connection with</bold> <bold>collision of automobile with sprinkling truck being driven on</bold> <bold>wrong side of road at night.</bold> Fact that highway was under construction, and automobile driver knew that it was being prepared for paving, did not necessarily absolve highway contractor from negligence in connection with collision of automobile with his sprinkling truck which was being driven on wrong side of road at night. <bold>3. Motor vehicles — correlative duties of highway contractor and</bold> <bold>traveler on road determined by all the circumstances.</bold> The correlative duties of highway contractor and a traveler on the road are determined by all the circumstances. <bold>4. Motor vehicles — highway under construction — where road was</bold> <bold>in general and unrestricted use as highway — right of motorist</bold> <bold>to assume that highway was free from hazard or obstruction</bold> <bold>such as operation of sprinkling truck on wrong side of road at</bold> <bold>night — duty of motorist.</bold> Where road was in general and unrestricted use as a highway, complete in all respects for which all public had right to use such thoroughfare, automobile driver had right to assume that highway was free from hazard or obstruction such as operation of water truck on wrong side of road at night in connection with road surfacing project, but automobile driver, who knew that road was being resurfaced, had duty to use ordinary care as to hazards such as water truck constituted. <bold>5. Motor vehicles — highway under construction — where road was</bold> <bold>open to general and unrestricted travel — duty of motorist</bold> <bold>with knowledge that highway was being prepared for paving.</bold> Mere fact that automobile driver knew that road was being prepared for paving, did not bind him to anticipate that water truck would be driving on wrong side of road sprinkling highway, nor put him on guard and under obligation of vigilant caution to keep a constant lookout for such hazard, where road was open to general and unrestricted travel.<page_number>Page 156</page_number> <bold>6. Motor vehicles — highway under construction — vehicles</bold> <bold>engaged in work upon surface of highway as exempt from traffic</bold> <bold>laws — duty of construction contractor determined by common</bold> <bold>law.</bold> Under code provisions excepting motor vehicles engaged in work upon surface of highway from traffic laws, operation on wrong side of road of water truck, sprinkling road preparatory to paving, was not a violation of traffic code, and duty of construction contractor must be determined by common law. Sec. 8148(d), Code 1942. <bold>7. Negligence — highway under construction — duty of</bold> <bold>construction contractor to warn public of any special hazard</bold> <bold>such as a sprinkling truck being operated on wrong side of</bold> <bold>road at night where highway was open to free and unrestricted</bold> <bold>travel.</bold> Where water truck was on left side of highway sprinkling road in preparation for paving, contractor in charge of construction of road was under duty to warn public of hazards to be encountered when traveling on road, and should have maintained barriers, barricades, signs, or other warning devices readily and easily seen by those using highway that would be sufficient to require traveler on highway to anticipate that at some near point in his progress he would encounter such truck. <bold>8. Negligence — evidence — sustained finding motorist's</bold> <bold>negligence, if any, was not the sole proximate cause of</bold> <bold>collision.</bold> In such case, evidence sustained finding that automobile driver's negligence, if any, was not the sole proximate cause of the collision. <bold>9. Negligence — evidence — sustained finding that contractor</bold> <bold>failed to perform his duty to warn motorist of hazards</bold> <bold>encountered on highway — such failure was negligence and a</bold> <bold>concurring proximate cause of collision.</bold> Evidence sustained finding that contractor failed to perform his duty to warn automobile driver of hazards encountered on highway, and that such failure was negligence and a concurring proximate cause of collision. <bold>10. Negligence — instructions — proper.</bold> Instruction, that jury should find for passenger if it believed from preponderance of evidence that contractor was guilty of negligence approximately contributing to accident in operation of water truck at time and place in question without giving automobile driver reasonable warning of danger thereof, was not improper. Headnotes as approved by Gillespie, J.<page_number>Page 157</page_number>

<bold>1. Motor vehicles — speeding — conviction sustained.</bold> Evidence sustained conviction of motorist of unlawfully speeding in that he was driving 70 miles per hour in a 60 mile per hour zone. <bold>2. Criminal law — statutes — instructions — must be requested —</bold> <bold>in writing.</bold> Under applicable statute providing that requested instructions must be in writing and that the Circuit Judge, at the request of either party, shall instruct the jury upon the applicable principles, the Circuit Judge cannot originate instructions or give them on his own motion. Sec. 1530, Code 1942. <bold>3. Criminal law — speeding — instructions — if defendant wished</bold> <bold>to request an instruction on principle involved, he should</bold> <bold>have submitted it in writing to Trial Judge.</bold> In prosecution for speeding, where, whether there was a trial before a justice of the peace on October 7, the day defendant was arrested, or whether justice erroneously issued a mittimus under which defendant was to be put in jail when he refused to make bond was in dispute, if defendant, who did not have a lawyer but undertook his own defense, wished to request an instruction on issue of whether or not there was a trial on October 7, he should have submitted it in writing to Trial Judge. Sec. 1530, Code 1942. <bold>4. Judges — not a partisan in favor of litigant who does not</bold> <bold>have an attorney.</bold> A Trial Judge is not required to become a partisan in favor of a litigant who does not have an attorney, or see that such litigant has presented every legal principle of which learned and astute counsel may conceive, and if a defendant chooses to be his own lawyer, such does not make him a ward of the court or a client of the Trial Judge. <bold>5. Criminal law — new trial — refusal to grant not error.</bold> In prosecution for speeding, where, whether there was a trial before a justice of the peace on October 7, the day defendant was arrested, or whether justice erroneously issued a mittimus under which defendant was to be put in jail when he refused to make bond was in dispute, and it was not until after conviction, when defendant secured an attorney to file a motion<page_number>Page 396</page_number> for a new trial, that mittimus and bond were offered in evidence, such was not new matter and refusal to grant a new trial on that ground was not error. <bold>6. Criminal law — constitutional law — plea of double jeopardy</bold> <bold>not sustainable.</bold> In prosecution for speeding, wherein State's proof showed that defendant who was arrested on October 7, was taken before a justice of the peace and on his refusal to make bond was sent to jail, and the next day the defendant secured a lawyer, made bond and subsequently by agreement of his counsel the case was set before the justice of the peace for October 30; and on that date defendant and his counsel appeared and participated in the trial and on his conviction defendant appealed to the Circuit Court, and the defendant, who undertook his own defense, contradicted the State's proof and, whether there was a trial before the justice of the peace on October 7, the day defendant was arrested, or whether justice erroneously issued a mittimus under which defendant was to be put in jail when he refused to make bond was in dispute, but where defendant on cross-examination had testified that he was not tried on October 7, the day of his arrest and that no affidavit was made at the time, contention on appeal to Supreme Court that justice of the peace court had no authority to try defendant on October 30 because it had previously tried him on October 7, was not sustainable, for the reason that if defendant's testimony was true his contention of double jeopardy would fall for two reasons: (1) The offense for which he was then tried was not the same offense involved in the appeal, and (2) if no affidavit was made the conviction was void and no bar to a subsequent prosecution. <bold>7. Supreme Court — does not give advisory opinions.</bold> The Supreme Court does not give advisory opinions. Headnotes as approved by Lee, J.

<bold>1. Criminal law — new trial — newly-discovered evidence —</bold> <bold>petition for new trial not properly overruled.</bold> A petition for new trial in rape prosecution based on newly discovered evidence was not properly overruled on ground that there was lack of diligence on part of accused where it appeared that accused and his counsel moved as rapidly as reasonably possible under the circumstances. <bold>2. Criminal law — new trial — newly-discovered evidence — when</bold> <bold>sufficient to require new trial.</bold> If newly discovered evidence will not probably produce a different result or induce a different verdict, it is not sufficient to warrant granting of new trial, but if, by legal standards, it<page_number>Page 617</page_number> will probably produce a different result or induce a different verdict, it is sufficient and should require a new trial. <bold>3. Criminal law — rape — new trial — newly-discovered evidence —</bold> <bold>sufficient to require new trial — Trial Court's denial of</bold> <bold>motion for new trial — error.</bold> Where newly discovered evidence, when put alongside the evidence adduced in original trial wherein accused was convicted of rape and sentenced to life imprisonment, created grave doubt as to accused's guilt, in view of probability that another person was the attacker, Trial Court's denial of motion for new trial was error notwithstanding victim's identification of accused as her attacker. Headnotes as approved by Lee, J.

<bold>1. Motor vehicles — intersectional collision — right of way —</bold> <bold>statutes — motorist who failed to stop at intersection</bold> <bold>controlled by flashing red light and proceeded into</bold> <bold>intersection not entitled under facts of case to instruction</bold> <bold>respecting statutory duty of yielding right of way to vehicle</bold> <bold>first entering intersection.</bold> Where plaintiff motorist approaching intersection controlled by flashing red light failed to stop and proceeded into intersection and was struck by defendant's vehicle entering intersection on flashing yellow light, motorist was not entitled to instruction respecting statutory duty of yielding right of way to vehicle first entering intersection, in view of statute requiring motorist to stop before entering intersection on flashing red light. Secs. 8158, 8195, Code 1942. Headnote as approved by Holmes, J.<page_number>Page 805</page_number>