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EVELYN B. TURNER v. NANCY TURNER

APRIL 13, 1988

EVELYN B. TURNER
v.
NANCY TURNER



BEFORE DAN LEE, ANDERSON AND GRIFFIN

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

On November 22, 1982, the appellant, Evelyn Turner, was

driving her Toyota station wagon from Clarksdale, Mississippi, to Grenada on Highway 49 near Glendora. The appellee and plaintiff below, Nancy Turner, was a passenger sitting in the back seat. At the intersection of Highway 49 and a county road known locally as" Black Bayou Road, "the Toyota driven by Evelyn Turner collided with a 1980 Chevrolet half-ton pickup truck owned by T. C. Buford and operated by Terry Mize. The appellee, Nancy Turner, was injured as result of the collision. Nancy Turner brought suit against T. C. Buford d/b/a Buford Plantation, Terry Mize and Evelyn Turner. The case was tried before a jury in the Circuit Court of the Second Judicial District of Tallahatchie County on September 9, 10 and 11, 1985. At the close of the plaintiff's case, the lower court entered a directed verdict against Terry Mize. The jury returned a verdict in favor of appellee, Nancy Turner, against all defendants, including Evelyn Turner, jointly and severally, in the sum of $200,000.

 Evelyn Turner appeals the lower court verdict, assigning six errors. Buford and Mize are not parties to this appeal.

 For the reasons assigned below we reverse and remand.

 FACTS

 On the rainy, foggy afternoon of November 22, 1982, Evelyn Turner was driving toward Grenada on Highway 49 at 40 m.p.h. As she approached the intersection of Highway 49 and a local road known as Black Bayou Road, she noticed the pickup truck driven by Terry Mize approach the intersection on Black Bayou Road. As she neared the intersection, she realized Mize was not going to stop at the stop sign. She threw on her brakes, but was unable to avoid the collision. Turner's car hit the truck above the back left wheel. The impact spun the truck around in the opposite direction and dragged Turner's car across the midsection of the highway. At trial Turner testified that because she had the right-of-way, she assumed Mize would stop; therefore, she did not slow down or blow her horn as she approached the intersection. Turner's testimony was corroborated by Mamie Caughey, a front-seat passenger in Turner's car.

 Terry Mize was driving the pickup in the course of his employment with T. C. Buford d/b/a Buford Plantations. He testified that he pulled up to the stop sign on Black Bayou Road, eased up to the line, looked both ways twice, did not see anyone coming, and pulled into the intersection. He did not see the Turner vehicle until after the impact; therefore, he did not know how fast the Turner vehicle was coming or if the vehicle's lights were on. He admitted that he should have seen the Turner

 vehicle approaching the intersection and that if he had seen it, the collision would have been avoided. His testimony conflicted with that of Turner and Caughey as to whether or not he stopped at the stop sign - both Turner and Caughey claimed he did not stop.

 Nancy Turner testified that she was riding in the right side back seat of Evelyn Turner's car headed toward Grenada on November 22, 1982. She was not paying attention to anything, but remembers thinking," at this rate of speed we will never get to Grenada. "She felt the car slow down abruptly, heard her mother-in-law say," my God, he's not going to stop, "and looked up in time to see the car hit the truck. After the impact, the car was over the center line. Her shoulder was numb initially; then, agonizing pain set in.

 Nancy Turner suffered a three-part fracture of her right shoulder which required three surgical procedures, one to pin the fracture, one to remove the pins and one to remove a subsequently formed bony block. Nancy has sustained permanent loss of motion of her right arm and onset of post-traumatic arthritis which will require further surgery for shoulder fusion or a shoulder replacement. She currently suffers a great deal of pain and has nearly developed a frozen shoulder which amounts to a 20-50% disability to the upper extremities and about a 12% whole body disability. Her injuries will require some kind of treatment for the rest of her life and she will soon not be able to function at her job as a food stamp eligibility worker because it has become increasingly difficult for her to write (she is right-handed). The job requires her to fill out lengthy forms by hand. Her present damages were stipulated by both parties as follows:

 Medical bills, $22,174.18; physical therapy, $2,228.00; medication, $53.20; lost wages $12,369.88.

 Nancy Turner also offered the testimony of an economist as an expert witness, who testified as to the future earning capacity of one Nancy Turner's age, based on what she was earning at the time of the accident. At 50% disability she would be expected to earn $166,721 over the remainder of her working life.

 At the close of her case, Nancy Turner moved for a directed verdict as to Mize and Buford, which was granted. Evelyn Turner moved for a directed verdict in her favor, but the motion was denied. Evelyn Turner did not call any witnesses in her defense, but Mize testified again in his own defense as to the issue of his and Evelyn Turner's joint negligence. While Mize admitted his negligence in not seeing a car in the intersection which he should have seen, he testified that if Evelyn Turner

 had slowed down and stayed on her side of the road, the accident would not have happened.

 The two issues before the jury, then, were (1) Evelyn Turner's negligence in this collision, and (2) the amount of damages to award plaintiff, Nancy Turner. The damage award ...


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