Wayne Jamison v. Gregory C. Barnes
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-00765-COA
WAYNE JAMISON
APPELLANT
v.
GREGORY C. BARNES
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
4/4/2007
HON. JAMES T. KITCHENS, JR.
NOXUBEE COUNTY CIRCUIT COURT
R. GREGG ROGERS
J. NILES MCNEEL
CIVIL - PERSONAL INJURY
SUMMARY JUDGMENT GRANTED
REVERSED AND REMANDED - 11/04/2008
EN BANC.
MYERS, P.J., FOR THE COURT:
¶1.
Wayne Jamison appeals from the Noxubee County Circuit Court’s grant of Gregory
Barnes’s motion for summary judgment on Jamison’s complaint for damages resulting from
a highway accident. Both Jamison and Barnes filed motions for summary judgment;
however, only Barnes’s was granted. Jamison argues on appeal that the trial court erred both
in granting Barnes’s motion and in denying his. Finding error only in the trial court’s grant
of summary judgment in favor of Barnes, we reverse and remand to the trial court for further
proceedings consistent with this opinion.
FACTS
¶2.
Jamison was seriously injured on November 5, 2005, while operating a tractor on
Highway 388 in Noxubee County, Mississippi, when he was struck from behind by Barnes’s
vehicle. Although the exact time of the accident is disputed, the parties and witnesses agree
that the collision occurred in the evening, sometime between 5:10 p.m. and 5:25 p.m. The
parties likewise dispute how much daylight remained at the time of the accident.
¶3.
Jamison, who works on a nearby farm, was returning home after a day’s work. He
had borrowed a farm tractor owned by his employer to use at his own home, and was
traveling eastward at approximately fifteen to eighteen miles per hour. Barnes, on his way
to work a night shift as a dredge line operator on the Tombigbee River, was traveling in the
same direction at a much higher rate of speed.1 It is undisputed that Barnes had his lights on,
and that Jamison’s tractor, although it had a rear-facing triangular reflector, did not have
working lights. Barnes claimed that he was unable to see Jamison’s tractor until he was too
close to stop, and that he attempted to avoid the collision by braking and moving into the left
lane. At the same time, however, a vehicle driven by Reverend Tommy Temple was
approaching in the westbound lane. To avoid hitting Rev. Temple’s truck, Barnes struck the
left rear of Jamison’s tractor. Barnes’s vehicle then collided with a small boat and trailer
being pulled behind Rev. Temple’s truck.
Neither Barnes nor Rev. Temple and his
passengers were injured in the accident.
¶4.
Jamison brought a personal injury suit against Barnes, citing negligence as the
1
Barnes’s affidavit stated that he was traveling at or below the fifty-five-mile-perhour speed limit. Rev. Temple’s affidavit corroborated this, and Jamison could not say
Barnes was speeding.
2
proximate cause of his injuries. Following the close of discovery, both parties moved for
summary judgment. Jamison’s motion asserted that he was entitled to summary judgment
as to Barnes’s negligence under White v. Miller, 513 So. 2d 600 (Miss. 1987), which held
that when two cars are traveling in the same direction, the primary duty of avoiding collision
rests with the second driver, who, in the absence of an emergency or unusual condition, is
negligent as a matter of law if he runs into the car ahead. Barnes’s motion asserted that
Jamison’s operation of the tractor on the highway after sunset without working lights, was
negligent per se, and that Jamison had failed to produce any evidence of Barnes’s negligence.
¶5.
At the hearing on the dueling motions for summary judgment, the parties introduced
Jamison’s deposition testimony, as well as affidavits from Barnes, Rev. Temple, and Pearlie
Mae Owens, a witness who arrived on the scene several minutes after the accident. In his
deposition, Jamison alleged that at the time of the accident, there was sufficient light
remaining for Barnes to have avoided the accident. Jamison admitted, however, that had the
lights on his tractor been working, he would have had them on at the time of the collision.
Barnes maintained that he had been traveling within the speed limit with his lights on, but
that it had been too dark to see Barnes’s tractor in time to avoid the collision.
¶6.
Also introduced at the hearing were cell phone records from around the time of the
accident, as well as United States Naval Observatory data, purportedly establishing the exact
time of the accident in relation to the setting sun. Although the exact time of the accident
was disputed, the parties and witnesses agreed that the collision occurred between 5:10 p.m.
and 5:25 p.m. On the date of the accident, this time frame falls between sunset and the end
3
of civil twilight, as defined by the United States Naval Observatory.2 Ultimately, the trial
court granted Barnes’s motion for summary judgment and denied Jamison’s. It is from this
decision that Jamison appeals.
STANDARD OF REVIEW
¶7.
We review a trial court’s disposition of a motion for summary judgment de novo.
Treasure Bay Corp. v. Ricard, 967 So. 2d 1235, 1238 (¶10) (Miss. 2007). This Court
“examines all the evidentiary matters before it – admissions in pleadings, answers to
interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So. 2d 977, 979
(¶7) (Miss. 2001) (citations omitted). The moving party has the burden of demonstrating that
no genuine issue of material facts exists, and the nonmoving party must be given the benefit
of the doubt concerning the existence of a material fact. Id. “If no genuine issue of material
fact exists and the moving party is entitled to judgment as a matter of law, summary
judgment should be entered in that party’s favor.” Monsanto Co. v. Hall, 912 So. 2d 134,
136 (¶5) (Miss. 2005).
DISCUSSION
I. Whether the trial court erred in granting Barnes’s motion for summary
judgment.
2
“Sunset” is defined as “conventionally refer[ring] to the times when the upper edge
of the disk of the Sun is on the horizon.” “Civil twilight” ends in the evening when the
center of the sun is geometrically six degrees below the horizon. Civil twilight is “the limit
at which twilight illumination is sufficient, under good weather conditions, for terrestrial
objects to be clearly distinguished,” although “complete darkness” does not occur until some
time after the end of civil twilight. United States Naval Observatory,
http://aa.usno.navy.mil/faq/docs/RST_defs.php (last visited September 11, 2008). According
to data from the U.S. Naval Observatory, on November 5, 2005, sunset began in Noxubee
County at 4:59 p.m. and civil twilight ended at 5:25 p.m.
4
¶8.
Barnes’s motion for summary judgment encompassed two distinct issues, so we shall
address each individually.
A. Whether Jamison produced evidence creating a genuine issue of material fact as
to Barnes’s negligence.
¶9.
Jamison argues that he produced sufficient evidence of Barnes’s negligence to defeat
summary judgment, through his own testimony and the affidavit of Owens, who came upon
the accident scene several minutes after the collision. Barnes defends the trial court’s grant
of summary judgment in the face of this evidence by pointing to admissions elicited from
Jamison in his deposition. We shall examine the evidence and admissions in the context of
the applicable law.
¶10.
“[Mississippi] has never adopted a per se rule that the driver of the following car is
negligent if he collides with the rear of a preceding vehicle . . . .” White v. Miller, 513 So.
2d 600, 601 (Miss. 1987). Furthermore:
[T]he 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. However, where there is evidence of an emergency or unusual condition, this operates
as a “non-rule” that presents a jury question as to whether the circumstances rise to the level
of emergency or abnormal condition. Id. at 602 n.3.
¶11.
In addition to the special rule for rear-end collisions propounded in White, our law
more generally imposes on a driver an “absolute duty of seeing what he should have seen”
5
and requires drivers to “keep a proper lookout and be[] on alert for vehicles, objects and
persons ahead in the highway.” Dennis v. Bolden, 606 So. 2d 111, 113-14 (Miss. 1992).
Furthermore, a driver “is also required to have his car under proper control, to be on the alert
on the highway, and avoid striking plain objects.” Id. at 114. To make a prima facie case
of Barnes’s negligence, Jamison was required only to show that Barnes should have seen the
tractor in time to avoid or mitigate the collision.
¶12.
Barnes argues that this case presents a scenario recognized by the supreme court as
illustrative of an emergency or abnormal condition – that he was unable to avoid the collision
because he suddenly came upon a slow-moving vehicle traveling without lights in darkness.
See White, 513 So.2d at 602 n.3. Barnes asserts in his testimony that he abided by all the
rules of the road, had his vehicle under proper control, was keeping a proper lookout, and
was not speeding was not contradicted in the record. Jamison, however, argues that there is
a genuine issue of fact as to whether or not it was too dark for Barnes to have avoided the
collision. Jamison points to his own deposition testimony, where he consistently described
the light remaining at the time of the accident as sufficient for Barnes to have avoided the
collision:
Q.
All right. Now you said that you got off at five and you started out, and
so what time do you say the accident happened, would you say, Mr.
Jamison?
A.
At least it would have been five - - I’d say 5:10 or fifteen. Somewhere
like - - like that.
Q.
All right. At least - - at least that time.
A.
Yes. At least that time.
6
Q.
And would you say it could have been even later?
A.
No, sir. Because - - I mean, good as - - I can get out there on the road - you know, and go down there late at evening on a tractor, and I can
see until dark, but it wasn’t dark. It was coming - - it was - - it was late.
Q.
Okay.
A.
But you could still see without lights.
Jamison subsequently testified:
Q.
Now, you say it was still sort of light.
A.
Yes.
Q.
Tell me exactly how much light you say there was at the time of day on
November the 5th.
A.
Closest I can - - can say, it got - - had to be about forty-five minutes.
Q.
Well, would you say it was dusk dark?
A.
Well, no, sir. It wasn’t dusk dark, but it was pretty close to dusk dark.
And finally:
Q.
All right. Let me go back to your description of how dark it was. Just
tell me in your own words how dark it was. I don’t want to put words
in your mouth. You just tell me.
A.
Well, I - - I couldn’t say exactly how dark it was because, really, I
wasn’t - - I knowed [sic] it wasn’t dark that you couldn’t see down the
whole highway for I could see down the highway without any problem.
Q.
Okay. Was the sun starting to go down?
A.
Yes, sir. The sun started going down. It did that when I was leaving - leaving off my job.
Jamison also cites the affidavit of Owens, who swore that she came upon the scene
approximately five minutes after the accident and stated, “At the time of the accident, you
7
could still see where you were going without the need for headlights. We were able to see
the accident scene well before we got there.” Barnes argues that this evidence is contradicted
by Jamison’s own deposition testimony. In particular, he points to two exchanges, which we
shall examine in detail.
¶13.
First, Barnes cites to an exchange from Jamison’s deposition where he asserts that
Jamison failed to attribute any negligent act to Barnes. Jamison testified that he was not
“able to say” that Barnes was speeding, not paying attention to what was in front of him, or
driving recklessly. When pressed to explain why Barnes was responsible for the accident,
Jamison stated that he could not answer and that he did not understand the question.
¶14.
From our review of the record, this argument is without merit. Jamison was struck
from behind, and he explained that he first saw Barnes’s vehicle only a few moments before
the collision. Jamison was not in a position to observe Barnes’s driving, and at any rate, he
was not required to personally witness a negligent act of Barnes. Our law allows Jamison
to prove Barnes’s negligence through circumstantial evidence – that the conditions were such
that Barnes should have seen Jamison’s tractor in time to avoid the collision. While we
might think of this as intuitive, Jamison is a layman who has worked as a farmhand for more
than fifty years. His claim does not fail because he was unable to articulate a legal theory
at his deposition.
¶15.
Second, Barnes asserts that Jamison’s deposition was internally inconsistent because
Jamison admitted that, had the lights on his tractor been working, he would have had them
on at the time of the collision. Barnes argues that this contradiction precludes Jamison from
now arguing that the remaining daylight was sufficient for Barnes to have avoided or
8
mitigated the accident.
¶16.
We do not find the two statements to be contradictory, as one need not wait until it is
too dark to see to turn on one’s lights. See Miss. Code Ann. § 63-7-11 (Rev. 2004) (lights
generally required “when there is not sufficient light to render clearly discernible any person
on the highway at a distance of five hundred feed ahead” (emphasis added)). Our law also
generally requires a driver to operate his vehicle with lights on from the time of “sunset,”
even though “complete darkness” does not occur until some time after the end of “civil
twilight,” a span of almost half an hour on the day of the accident. See id. It is undisputed
that the accident occurred some time after “sunset” but before “complete darkness.”
Furthermore, lights may be used by cautious drivers even when not required by law, and the
threshold for when this is prudent is a matter of personal judgment and opinion, rather than
concrete fact. Because lights are often used or required when visibility is nonetheless
sufficient to avoid a collision like the one in the instant case, Jamison’s admission that he
would have had his lights on, had they been working, is not an admission that it was too dark
for Barnes to have seen the tractor in time to avoid the accident.
¶17.
Even if, as the dissent argues, Jamison’s deposition testimony were internally
inconsistent on the sufficiency of light remaining, the trial court would nonetheless have
erred in granting summary judgment to Barnes. Contradictory statements by a witness go
to the weight and credibility of that witnesses’s testimony, not its sufficiency, and a
summary judgment motion does not place the trial court in the role of weighing testimony
and determining the credibility of witnesses. Giles v. Brown, 962 So. 2d 612, 617-18 (¶20)
(Miss. Ct. App. 2006) (citing Stegall v. WTWV, Inc., 609 So. 2d 348, 352-53 (Miss. 1992)).
9
The dissent is correct to point out, however, that this rule is not without exceptions. One of
those exceptions prevents a party from defeating summary judgment with an affidavit of a
witness that contradicts facts asserted in that witness’s prior deposition testimony, unless the
affidavit explains the discrepancy. Foldes v. Hancock Bank, 554 So. 2d 319, 321 (Miss.
1989). The instant case, however, is distinguishable, and the exception discussed in Foldes
does not apply to either Owens’s affidavit or Jamison’s deposition testimony.
¶18.
As to Owens’s affidavit, Owens had not been previously deposed. The dissent argues
that her affidavit should not be considered because it conflicts, not with her own prior
testimony, but with Jamison’s. The exception as stated by our supreme court simply does
not include an affidavit that is contradicted by the deposition of a different witness.
Additionally, Owens’s affidavit and Jamison’s deposition testimony do not contradict each
other because they do not speak to the same facts. Jamison did not testify that his tractor
could not have been seen by other drivers without its lights on; he said the lights would have
made it easier for other drivers to see him. Owens, however, offered that there was still
sufficient light to see without the use of lights.
¶19.
As to Jamison’s own testimony, as we have explained above, it is not inconsistent.
Even if we were to assume that it was inconsistent, the Foldes exception nonetheless does
not apply to internal inconsistencies in one deposition, but applies only to cases where a
deposition is later contradicted by an affidavit intended to defeat summary judgment. In fact,
one of the Fifth Circuit cases cited by the supreme court in adopting this rule embraced the
same distinction. See Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894-95 (5th Cir. 1980)
(“Thus, the alleged inconsistency created by the affidavit existed within the deposition itself.
10
Accordingly, the issue . . . was appropriately raised by the deposition even without
consideration of the affidavit.” (footnote omitted)).
¶20.
Jamison’s deposition testimony and Owens’s affidavit both describe the daylight
remaining at the time of the accident as sufficient for Barnes to have seen Jamison’s tractor
in time to avoid the collision.
Jamison also testified that the road was straight and that
Barnes’s view was unobstructed, and it is uncontroverted that Jamison’s tractor was equipped
with a large, reflective triangle facing to the rear and that Barnes was operating his vehicle
with its headlights on. Giving Jamison the benefit of all reasonable inferences from these
facts, there is a genuine issue of material fact as to whether Barnes was negligent because he
should have seen the tractor in time to avoid or mitigate the accident. The trial court erred
in granting summary judgment to Barnes on this issue.
B. Whether Jamison’s operation of the tractor was negligent per se.
¶21.
Barnes’s summary judgment motion also alleged that Jamison was negligent per se
for violating two provisions of the Uniform Highway Traffic Regulation Law. First, we
would note that even if Jamison were negligent per se, it would not bar his recovery if he
could show that Barnes was also negligent, under the familiar doctrine of comparative
negligence. See Coho Res., Inc. v. Chapman, 913 So. 2d 899, 911 (¶36) (Miss. 2005). Even
if comparative negligence were taken off the table, Mississippi Code Annotated section 63-781 (Rev. 2004) further provides that, “Nothing in this chapter shall be so construed as to
curtail or abridge the right of any person to prosecute a civil suit for damages by reason of
injuries to person or property resulting from the negligent use of the highways by any motor
vehicle, or its owner . . . .” Had Jamison been negligent per se under this chapter, it would
11
not preclude his recovery as long as he could show Barnes was also negligent.
¶22.
The first statutory provision Jamison is said to have violated is Mississippi Code
Annotated section 63-7-11 (Rev. 2004), which requires that most vehicles operating on the
highways after sunset use headlights and taillights, and section 63-7-13(3) (Rev. 2004),
which requires that “[e]very motor vehicle, trailer, semitrailer, pole trailer and any other
vehicle which is being drawn in a train of vehicles shall be equipped with at least one . . . rear
lamp . . . .” These requirements, however, did not apply to Jamison’s tractor in the instant
case, as Mississippi Code Annotated section 63-7-9 (Rev. 2004) provides that, “Except as
may otherwise be provided in this chapter, the provisions of this chapter with respect to
equipment on vehicles shall not apply to implements of husbandry, road machinery, road
rollers, or farm tractors.”
¶23.
The record shows that the vehicle Jamison was operating at the time of the collision,
an International Harvester model 986 tractor employed for agricultural purposes, would
qualify as either an “implement of husbandry” or a “farm tractor,” and is thus generally
exempted from the equipment requirements of the chapter. This exemption extends to the
lighting requirements of sections 63-7-11 and 63-7-13(3). See Williams ex rel. Dixon v.
Thude, 885 P.2d 1096, 1099-1100 (Ariz. Ct. App. 1994) (implements of husbandry exempted
from lighting requirements); Se. Liquid Fertilizer Co. v. Mock, 88 S.E.2d 531, 532 (Ga. Ct.
App. 1955) (farm tractors exempted from lighting requirements unless the tractor falls under
a Georgia-specific addition to the uniform act, which required tractors originally equipped
with lights to use them); Thomas v. Johnson, 181 So. 2d 487, 488-89 (La. Ct. App. 1965)
(implements of husbandry exempted from equipment requirements); Bernhard v. Lincoln
12
County, 437 P.2d 377, 379 (Mont. 1968) (road machinery exempted from lighting
requirements); Griffin Grocery Co. v. Logan, 309 P.2d 1074, 1077 (Okla. 1957) (road
machinery exempted from lighting requirements); Cook v. Caterpillar, Inc., 849 S.W.2d
434, 438-439 (Tex. App. 1993) (road machinery exempted from turn signal requirement);
Western Packing Co. v. Visser, 521 P.2d 939, 942-43 (Wash. Ct. App. 1974) (implements
of husbandry exempted from lighting requirements).3
¶24.
The second statutory provision Jamison is said to have violated prohibits the non-
emergency operation of certain slow-moving vehicles after sunset, when those vehicles are
equipped with reflective tape in lieu of a standard triangular slow-moving-vehicle emblem.
See Miss. Code Ann. § 63-7-91 (Rev. 2004) (“Except in cases of emergency, vehicles subject
to the provisions of this section that display the reflectorized tape shall not be operated upon
any highway . . . from sunset to sunrise.” (emphasis added)). It is clear from the record that
Jamison’s tractor was equipped with a triangular reflector, not reflectorized tape, and thus
would not be prohibited from operating on the highway after sunset even if this section
applied. We need not address whether farm tractors are subject to the specific equipment
requirements for slow-moving vehicles under section 63-7-91.
¶25.
While a jury might find Jamison’s operation of the tractor under these circumstances
to be negligent, the trial court erred in finding it to be negligent per se.
II. Whether the trial court erred in denying Jamison’s motion for summary
judgment.
3
Additionally, “This chapter shall be so interpreted and construed as to effectuate its
general purpose to make uniform the law of those states which enact it.” Miss. Code Ann.
§ 63-7-3 (Rev. 2004).
13
¶26.
Jamison also argues that the trial court erred in denying his own motion for summary
judgment. We find this argument to be without merit. For the reasons discussed above,
Barnes’s affidavit, which maintained that it was too dark for him to have seen Jamison’s unlit
tractor in time to avoid the collision, was sufficient to create a genuine issue of material fact
as to Barnes’s negligence under the circumstances. Because the evidence is conflicting, the
trial court did not err in refusing to find Barnes negligent as a matter of law.
¶27. THE JUDGMENT OF THE CIRCUIT COURT OF NOXUBEE COUNTY IS
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLEE.
KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, ISHEE AND
ROBERTS, JJ., CONCUR. BARNES, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY CARLTON, J.
BARNES, J., DISSENTING:
¶28.
In order to survive summary judgment, “[t]he non-moving party’s claim must be
supported by more than a mere scintilla of colorable evidence; it must be evidence upon
which a fair-minded jury could return a favorable verdict.” Luvene v. Waldrup, 903 So. 2d
745, 748 (¶10) (Miss. 2005) (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d
1205, 1213-14 (Miss. 1996)). In a negligence action, the plaintiff generally has the burden
of proof on the issue of causation, and must “introduce evidence which affords a reasonable
basis for the conclusion that it is more likely than not that the conduct of the defendant was
a cause in fact of the result. A mere possibility of such causation is not enough.” Herrington
v. Leaf River Forest Prods., Inc., 733 So. 2d 774, 777 (¶10) (Miss. 1999). After studying the
record, and analyzing the evidence in the light most favorable to Jamison, I find no such
14
evidence and, therefore, dissent.
¶29.
On November 5, 2005, between approximately 5:10 p.m and 5:25 p.m., Jamison,
Barnes, and Rev. Tommy Temple were involved in a motor vehicle accident on Highway 388
in Noxubee County, Mississippi. Jamison, who works on a nearby farm, was driving his
employer’s tractor in an eastward direction. Barnes, who was also driving in an eastward
direction, claimed he was abiding by all of the rules of the road, including having his lights
on, when he came upon Jamison’s tractor without notice. The tractor’s lights were not on.
It did, however, have a large reflective triangle on the back. Barnes attempted to take evasive
action to prevent hitting the tractor by braking and swerving to the left, but he was
unsuccessful. Barnes hit the tractor from the rear. Rev. Temple was driving his pickup truck
in a westerly direction, pulling a bass boat. After Barnes collided with Jamison, Barnes’s
vehicle entered Rev. Temple’s lane and struck his bass boat. In his affidavit, Rev. Temple
stated it was “definitely dark enough” that vehicle lights were needed. According to the
United States Naval Observatory Astronomical data, sunset in Noxubee County for
November 5, 2005, began at 4:59 p.m.4
¶30.
The evidence is thus uncontradicted that Barnes hit the back of Jamison’s unlit, slow-
moving tractor. The three witnesses to the accident, Jamison, Barnes, and Rev. Temple,
attribute no fault to Barnes. In his deposition, Jamison himself admitted that Barnes was not
speeding or driving erratically. Furthermore, Jamison admits that it was dark enough that if
4
The U.S. Naval Observatory conventionally defines “sunset” as the time when
the upper edge of the Sun’s disk is on the horizon. United States Naval Observatory,
http://aa.usno.navy.mil/faq/docs/RST_defs.php#top (last visited October 9, 2008).
15
the tractor’s headlights had been working, he would have had them on.
Q.
Tell me exactly how much light you say there was at that time of day
on November the 5th.
A.
Closest I can . . . say, it got – had to be about forty-five minutes.
Q.
Well, would you say it was dusk dark?
A.
Well, no, sir. It wasn’t dusk dark, but it was pretty close to dusk dark.
Q.
Other vehicles on the highway had their lights on. Is that right?
A.
Yes, sir.
Q.
You would have had your lights on, but they didn’t work?
A.
Yes, sir. Well, if I . . . had had some, I could have . . . had them on, but
they didn’t work, like you say.
Q.
If they had been working, would you have probably had your lights on?
A.
Yes, sir.
Q.
Why would you have had your lights on if they’d been working?
A.
Well, . . . you watch for the next person coming and meeting you, and
you let them know that you got your lights on – some behind you, some
in front of you.
Q.
Okay. Do you think it was dark enough or sunset enough or dusk
enough that you needed your lights . . . if they had been operating?
A.
Yes, sir.
Q.
But you . . . couldn’t turn them on because they . . . didn’t work?
A.
Yes, sir.
Q.
But do you think that . . . you needed them on since it was close enough
to dusk, if they had been operating?
A.
Uh – yes. If I’d had them, I could have . . . had them on.
16
Q.
And . . . would you have had them on?
A.
Yes, sir.
Jamison also noted Barnes’s headlights were on. In Barnes’s affidavit, he recounts the
accident as follows:
My headlights were on as it was almost dark. Suddenly, I saw a slow moving
tractor in my lane traveling in the same direction. There were no lights on the
tractor and I was almost upon it before I noticed the tractor . . . . I was obeying
all rules of the road, was not speeding, and was attentive to the road in front
of me.
Rev. Temple, whose vehicle was pulling a bass boat which Barnes struck trying to evade
Jamison’s tractor, stated in his affidavit that:
I was not able to estimate the speed for . . . [Barnes’s] vehicle but I have no
reason to believe the vehicle approaching behind the tractor was speeding. . .
. I did not observe any improper driving on the vehicle approaching behind the
tractor. . . . In my opinion it was too dark for the tractor to be on the highway
without lights operating.
Moreover, the official accident report states there was no apparent improper driving by
Barnes. In the absence of any proof of negligence on Barnes’s part, there is no factual
dispute that needs to be presented to a jury.
¶31.
The majority notes that Barnes did have certain duties specific to rear-end collisions
as articulated in White v. Miller, 513 So. 2d 600, 601 (Miss. 1987). The defendant has a duty
to (1) keep his vehicle under proper control, (2) keep a proper look-out ahead, and (3) drive
at a speed with 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
17
vehicle.5 The Mississippi Supreme Court noted in White that it had “never adopted a per se
rule that the driver of [a] following car is negligent if he collides with the rear of a preceding
vehicle. . . .” Id. The White court cited Miller v. Cody, 252 P.2d 303 (Cal. 1953) for the rule
that “[w]here two cars are traveling in the same direction, the primary duty of avoiding a
collision rests with the following driver and in the absence of an emergency or unusual
conditions” he is negligent as a matter of law if he runs into the car ahead. The White court
referred to this proposition as a “non-rule” that allows for case-by-case decisions. Id. at 602
n.3. An emergency situation expressly recognized in White, and similar to the instant facts,
is where the defendant unexpectedly encounters a slow-moving vehicle traveling without
lights at night. Id. (citing Szarapski v. Joaquin, 292 P.2d 959, 962 (Cal. Ct. App. 1956)).6
¶32.
I find no evidence of negligence on the part of Barnes; his uncontradicted affidavit
reflects that he maintained his duty of care pursuant to the factors outlined in White. The
record indicates Barnes was abiding by the rules of the road, keeping his vehicle in control,
5
I note that White is factually dissimilar from the case at bar in that White deals
with the driver of a vehicle following behind another when the vehicle in front suddenly
stopped. Here, the evidence shows Barnes was not necessarily “following” Jamison’s
tractor, but suddenly came upon it. Nor did the tractor suddenly stop.
6
I find the issue of whether Jamison was “negligent per se” to be a “red herring”;
whether or not Jamison’s conduct violated motor vehicle statutes creates no genuine issue
of material fact as to whether Barnes was negligent. The majority claims the trial court
based its grant of summary judgment on Jamison’s operation of a tractor on the highway
during the prohibited hours of use; however, we find no such specification in the order; it
merely stated there were no genuine issues of material fact present. While the
Mississippi Legislature has not seen fit to make it a statutory violation for a slow-moving
tractor to travel on Mississippi roadways after sunset without headlights or taillights
functioning, as it has with the majority of vehicles, that does not mean that the conduct
was not negligent. See Miss. Code Ann. § 63-7-99 (Rev. 2004) (compliance with slowmoving vehicle emblem does not create prima facie case or presumption of “reasonable
and ordinary care”).
18
maintaining a proper lookout, not speeding, and not following the tractor in close proximity,
when he suddenly came upon it. Also, the fact that the tractor did not have its lights on could
present an abnormal or emergency condition, as articulated in White, which further precludes
Barnes’s fault. In White, the Mississippi Supreme Court stated that “the jury can decide
whether or not the circumstances rise to the level of emergency or abnormal condition.” Id.
at 602 n.3. However, in this case, where the only evidence of negligence is on the part of
Jamison, I am unable to find that a jury issue has been created.
¶33.
The majority states that “Jamison offered his testimony and that of one other witness
asserting that there was still sufficient daylight left at the time of the accident for Barnes to
have seen the tractor in time to avoid colliding with it.” To the contrary, Jamison admitted
that it was dark enough to have needed lights; his lights were just inoperable. The only proof
Jamison offered in support of this contention that there was sufficient daylight for Barnes to
have avoided hitting him is the affidavit of Pearlie Mae Owens, who claimed that she came
upon the scene of the accident less than five minutes after it took place. Owens stated, “you
could still see where you were going without the need for headlights. We were able to see
the accident scene well before we got there.” Owens’s affidavit, however, conflicts with all
of the other evidence about the necessity for vehicular lights at the time of the accident.
Jamison admits in his own deposition that it was dark enough to have had the tractor’s lights
on if they had been working. Moreover, when there is a discrepancy between the facts of an
affidavit and a previous deposition of the same witness, “the affidavit must explain such
discrepancy.” Foldes v. Hancock Bank, 554 So. 2d 319, 321 (Miss. 1989) (citing Miller v.
A.H. Robins, Inc., 766 F.2d 1102, 1104 (7th Cir. 1985)). I find this rule analogous to the
19
situation at bar, even though this case deals with two different people. In the instant case,
Jamison would be precluded from presenting his own affidavit contradicting his admission
that it was dark enough for his tractor’s lights to have been on. He attempts to create a
genuine issue of material fact, contradicting his own testimony, by presenting the affidavit
of a person who was not present at the time the accident occurred. I find that Owen’s
affidavit is insufficient to overcome Jamison’s admission. Her affidavit, which fails to
identify any negligence on the part of Barnes, is insufficient to create a genuine issue of
material fact that he was responsible for the accident.
¶34.
Therefore, I must dissent, as I find that Jamison has not met his burden of proof to
establish the existence of a genuine issue of material fact that more likely than not the
conduct of Barnes was the cause of the accident; thus, I would affirm the circuit court’s grant
of summary judgment in favor of Barnes.
CARLTON, J., JOINS THIS SEPARATE OPINION.
20
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