BEFORE PATTERSON, C.J.; ROY NOBLE LEE, P.J.; AND ROBERTSON, J.
ROBERTSON, JUSTICE, FOR THE COURT:
On Memorial Day weekend, 1982, John Steve Hill and James E. Dunaway struck out for the Mississippi Gulf Coast "to see the sun rise" . Five hours and several dozen cans of beer later, they saw only a Hancock County ditch on the side of Mississippi Highway 607. The earth remained in darkness.
Thereafter, Hill brought this civil action against Dunaway seeking damages for personal injuries sustained in the accident. The facts reveal without dispute that at the time of the accident Hill was a passenger riding in the right front seat of the vehicle Dunaway was driving. Although there is some evidence that he had not had anything to drink during the hour immediately preceding the wreck, Dunaway admitted on cross-examination that he was "under the influence" at the time. Moreover, several minutes before the one car accident, Dunaway almost ran off the side of the road as he began to doze off, rendering credible the inference that prior to the accident Hill knew or should have known that Dunaway's capacity for safe driving was impaired by drowsiness, if not by beer.
At trial Hill proved severe injuries to his right leg, necessitating several operations, and medical and hospitalization expenses in the amount of $30,782.61. Hill also claimed lost wages in the amount of $10,660.00. In this state of the evidence the jury returned a verdict for Hill in the amount of $50,000.00. Hill appeals complaining that the verdict is grossly inadequate and can only be explained on the premise - argued to the jury by defense counsel - that Hill was negligent and that his recovery should be reduced in accordance with our familiar comparative negligence doctrine. Hill's primary argument on this appeal is that the trial court should not have submitted the comparative negligence question to the jury.
Hill's first assignment of error is that the trial judge erred in submitting to the jury the following instruction:
The Court instructs the jury that if you find from a preponderance of the evidence in this case that the plaintiff [Hill] and the defendant [Dunaway] left
Jackson, Mississippi at approximately 9:30 or 10:00 p.m. on the evening of the accident, and began drinking beer while traveling, and that the plaintiff Hill bought a six-pack of beer, which the plaintiff and the defendant consumed between Jackson and Hattiesburg, and that in Hattiesburg, the plaintiff and defendant purchased another six-pack of beer and continued to drink beer and drive south on Highway 49, and that the parties arrived at the Mississippi Gulf Coast, and then decided to drive toward New Orleans, and that defendant Dunaway became sleepy while continuing to drive, and if you find from the preponderance of the evidence, if any, that under the circumstances, the plaintiff failed to exercise ordinary and reasonable care for his own safety, then you may find that the plaintiff was guilty of negligence. And if you further find that the plaintiff's negligence, if any, proximately contributed to his own injury, then you must, under the law, reduce any award you might otherwise render for the plaintiff by the proportion of the causal negligence you attribute to the plaintiff under the circumstances.
As with any granted jury instruction challenged on appeal, two questions are necessarily implicated: Does the instruction contain a correct statement of the law? and, Is the instruction warranted by the evidence? The assignment of error requires that we address both questions.
Hill's complaint in part is that the instruction "was contrary to an overwhelming weight of the evidence" . The operative point, however, is that a party to an action is entitled to have the jury instructed regarding a genuine issue of material fact, viz the Plaintiff's contributory negligence vel non, so long as there is credible evidence in the record which would support the instruction. Odier v. Sumrall, 353 So. 2d 1370, 1374 (Miss.1978); Dreyfus v. Mississippi City Lines, 261 So. 2d 786, 789 (Miss.1972); Cotton v. Quinn, 245 So. 2d 593, 594 (Miss.1971). By analogy to our familiar test as to when any fact question may be taken from the jury, our rule is this: The refusal of a timely requested and correctly phrased jury instruction on a genuine issue of material fact is proper, only if the trial court - and this Court on appeal - can say, taking the evidence in the light most favorable to
the party requesting the instruction, and considering all reasonable favorable inferences which may be drawn from the evidence in favor of the requesting party, that no hypothetical, reasonable jury could find the facts in accordance with the theory of the requested instruction. Cf. Lee v. State, 469 So. 2d 1225, 1230-31 (Miss.1985); Fairchild v. State, 459 So. 2d 793, 801 (Miss.1984).
Turning to the facts, the finding of which the said-to-be-offensive instruction suggests to the jury, we find credible evidence in the record that Hill and Dunaway jointly consumed at least a six-pack of beer between Jackson and Hattiesburg, that they purchased at least another six-pack in Hattiesburg and continued to drink as they drove south, that immediately prior to the accident Dunaway by his own admission "was under the influence" of alcohol, and that prior to the accident Dunaway became sleepy while continuing to drive. Following this point the instruction merely advises that, if under these circumstances Plaintiff Hill failed to exercise reasonable care for his own safety, the jury "may" - as distinguished from "must" - find him guilty of negligence. The instruction concludes by providing that, if the jury found that such negligence, if any, contributed to Hill's injuries, his recovery should be reduced proportionately.
In our view this instruction correctly states the law and was amply supported by the evidence. The record reflects that Plaintiff Hill, immediately prior to the accident, was aware that Dunaway had been drinking beer for a considerable period of time - even assuming that Dunaway had had nothing to drink for the past hour. Further, Hill knew that a few minutes previously Dunaway had almost fallen asleep and had swerved off onto the shoulder of the road. From this evidence a jury may reasonably have concluded that Dunaway's extensive beer consumption or sleepiness, or the two in combination, presented a danger. A jury could further reasonably have concluded that Hill knew or should have known of these dangers, singly or in combination, and that knowing of these things, decided to take his ...