BEFORE WALKER, P.J., HAWKINS AND ROBERTSON, JJ.
ROBERTSON, JUSTICE, FOR THE COURT:
This appeal follows a jury verdict in favor of F-S Prestress, Inc. and its employee, Steve Smith, Jr., finding no liability to Howard McCoy Byrd for injuries and damages
resulting from a February 29, 1980 collision between Byrd's tractor trailer and a Prestress tractor trailer driven by Smith.
On appeal, Byrd contends that the trial court erred in: (1) in granting Jury Instruction D-6 (concerning distances to be observed by motor trucks following one another); (2) in granting Jury Instruction D-5 (concerning the permissibility of proceeding at a reduced speed); (3) in refusing to grant Jury Instruction P-18 (concerning Byrd's theory as to how turns onto a through highway are to be executed); (4) in striking part of the testimony of Byrd's accidentologist; and (5) in granting Jury Instruction D-10 (stating that disfigurement is not a compensable injury).
For the reasons set forth below, we affirm.
The accident which has given rise to this litigation occurred at approximately 7:00 a.m. on February 29, 1980 in the south - bound lanes of U.S. 49 approximately three miles north of Hattiesburg, Mississippi. The parties stipulated that the point of impact was 375 feet south of where Pep's Point Road intersects that highway.
Smith, driving a Prestress tractor trailer, emerged from Pep's Point Road on the east side of U.S. 49 and turned south onto U.S. 49. Executing this turn involved: (1) stopping where Pep's Point Road first intersects U.S. 49; (2) crossing the northbound two lanes of U.S. 49 so as to reach the center median area of U.S. 49; (3) pausing in the center median area; and (4) turning left into the leftmost (easternmost) of the two southbound lanes of U.S. 49.
The parties have agreed that 24 seconds after Smith had executed this turn and had proceeded 375 feet down U.S. 49, the front driver's side of Byrd's tractor struck the passenger-side rear end of Smith's trailer. Byrd's tractor trailer then jackknifed and came around in front of Smith's truck eventually coming to a stop against a bridge abutment that is some 300 feet past the point of the collision.
Byrd suffered facial lacerations and other head injuries. Byrd's truck was substantially damaged. Smith suffered no injury, and his trailer was only slightly damaged.
Approximately eight tenths of a mile north of the
accident site on U.S. 49 is the crest of a hill. From this hill crest down to the accident site the highway is straight and clear. Once reaching the hill crest Byrd could see Smith and Smith could see Byrd. Byrd came over the crest of the hill in the righthand lane following a group of other cars and trucks.
Shortly after reaching the crest of the hill, Byrd pulled into the lefthand lane and began passing some of the cars and trucks. He remained in the lefthand lane until the accident and was unable to reenter the righthand lane because there were other vehicles in that lane occupying it. At the time of the accident Smith's truck was traveling at reduced speed - perhaps in the neighborhood of 20 to 30 mph - because that is as much acceleration as Smith had been able to obtain after having paused in the center median.
Howard McCoy Byrd commenced this civil action on May 13, 1980, when he filed his declaration in the Circuit Court of Forrest County, Mississippi. Named as Defendants were F-S Prestress, Inc., a corporation, and Steve Smith, Jr., individually. The declaration charged Smith with negligence in various particulars. Prestress was sued as the employer of Smith under a theory of respondeat superior. Indeed, it was uncontroverted at trial that Smith was employed by Prestress and was acting within the course and scope of his employment when the accident occurred.
After the usual course of pretrial proceedings, this case was called for trial on its merits on May 5, 1982. Trial resulted in a jury verdict for both defendants.
It is fairly apparent from reviewing the record in this case that the reason the jury did not find Smith and Prestress liable is because the conclusion is nearly inescapable that, at the time and on the occasion in question, Byrd was not properly attentive and was probably speeding. From a combination of direct observation testimony and mathematical time and distance calculations, it appears that Byrd was at least 1,000 feet (perhaps nearly 2,000 feet) north of Smith when Smith pulled out onto Highway 49. Byrd, claimed to be going 55 miles per hour while he was passing other cars and trucks whose drivers testified that they were going 55 miles per hour. By stipulation, Byrd had 24 seconds after Smith turned onto the highway to slow down so as to avoid a collision. The verdict suggests a finding by the jury that, if Byrd had been driving reasonably carefully, the accident should have been avoided.
In any event, on May 14, 1982, final judgment was entered in favor of Prestress and Smith and against Byrd. Plaintiff Byrd timely filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. These alternative motions were ...