BEFORE ROY NOBLE LEE, PRATHER AND SULLIVAN:
SULLIVAN, JUSTICE, FOR THE COURT:
This case comes on appeal from the Circuit Court of Hinds County, Mississippi, from a final judgment on a jury verdict of $00 in favor of the appellant and against the appellees Roberts and Miller Transporters, Inc. Appellant was granted a peremptory instruction in her favor on the issue of liability.
Appellant perfected her appeal and assigns as error
(1) that the verdict of the jury was against the overwhelming weight of the evidence, and
(2) that the trial court erred in granting jury instruction D-11.
Appellees cross-appeal and cross-assign as error
(1) that the trial court erred in granting appellant a peremptory instruction on liability;
(2) that the trial court improperly overruled appellees' objections to appellant's hypotheticals; and
(3) that the trial court improperly failed to grant instructions on contributory negligence.
Having considered the arguments, we find it was error to grant instruction D-11 over timely objection and to overrule the appellant's motion for a new trial. There being no merit to any other assignment of error either by the appellant or by the appellees, we affirm the action of the trial court in granting the peremptory instruction as to liability and reverse and remand for a new trial on the issue of damages.
On September 17, 1979, Jeanne Barkley was proceeding east down two-lane highway 98 from McComb to Columbia. She was being followed by appellee Hiram Roberts, Jr., driving an 18-wheel tractor-trailer rig owned by appellee Miller Transporters, Inc. It had been raining that day and the road was wet. This particular stretch had also been recently asphalted. Just prior to arriving at the long straightaway on which the accident happened, both Barkley and Roberts passed a road sign which cautioned them that the upcoming stretch of road was slippery when wet. As they reached
the straightaway, Roberts pulled into the west lane in order to pass Barkley. Before Roberts had completed his passing effort, he lost control of his truck. Seeing this, Barkley, without applying her brakes, drove her vehicle off the road at forty miles per hour. As a result, Barkley was tossed around inside her car. There was no actual contact between the two vehicles, and after having her car pushed back onto the highway, Barkley drove herself back to McComb.
Prior to this accident in 1979, Barkley had been involved in an accident in 1971 that resulted in lower back pain. She had also been involved in an accident in 1973 and 1977 which resulted in "whiplash" type injuries similar to those complained of as a result of this 1979 accident. Barkley also was involved in at least two incidents that did not involve automobiles but that could have accounted for some of her pain. These incidents occurred after the accident of 1979. Between the date of the accident and the date of the trial, Barkley saw at least five physicians and was hospitalized three times.
The day after the accident Barkley saw her gynocologist, Dr. Edsel Stewart. She complained of a stiff neck, stiffness in her back, neck, shoulder, upper arm, wrist, and left thumb. She was treated until October 31, 1979, ...