Before Sullivan, P.j., Banks And Roberts, JJ.
The opinion of the court was delivered by: Sullivan, Presiding Justice,
DATE OF JUDGMENT: 02/20/97
TRIAL JUDGE: HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED: SIMPSON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 12/17/98
¶1. This case arises out of a November 4, 1993, accident involving a school bus driven by Thornell Coleman and an automobile driven by Michael Triplett, with his mother Ethel Triplett and niece Ashley Gray riding as passengers. The two vehicles were traveling in opposite directions on Ella Walker Road in Magee, Mississippi. Each party claimed that the other crossed over the center line in the road into the other's lane. The result was a head-on collision, the front left of each vehicle striking the other. Ms. Triplett's hip was broken, and her C-2 vertebra in her neck was fractured, requiring her to wear a halo for three months. Ashley and Mr. Triplett each sustained minor injuries, and both vehicles were substantially damaged.
¶2. The Tripletts and Sheila Gray, Ashley's mother, filed their complaint against Coleman and the Simpson County School District on August 15, 1994, in the Simpson County Circuit Court. The defendants filed their answer and counterclaim on September 29, 1994, and the plaintiffs filed their answer to the counterclaim on November 3, 1994. After holding a hearing on the matter on September 10, 1996, Circuit Court Judge Robert G. Evans found that Mr. Triplett was 65% negligent and that Mr. Coleman was 35% negligent in causing the accident. Coleman and the Simpson County School District appeal to this Court, arguing that there was insufficient evidence to support the trial court's decision. The appellees assert that the appeal is frivolous and request this Court to invoke Rule 38 of the Mississippi Rules of Appellate Procedure and award them attorney's fees and costs of appeal.
WHETHER THE TRIAL COURT'S CALCULATION OF NEGLIGENCE WAS SUPPORTED BY SUFFICIENT EVIDENCE IN THE RECORD.
¶3. The appellants maintain that the trial Judge erred in finding them partially at fault, because the physical evidence all supports their position that Michael Triplett crossed the center line in the road. They contend that Mr. Triplett's negligence was the sole proximate cause of the accident.
¶4. The appellants point to Mississippi case law stating that physical evidence is afforded more weight than conflicting eyewitness testimony. "[W]here the photographs contradict the plaintiff's tenuous theory of an accident, the plaintiff's theory will not support a jury verdict." Johnson v. City of Pass Christian, 475 So.2d 428, 431 (Miss. 1985). See also Gunn v. Grice, 204 So.2d 177 (Miss. 1967); Claiborne v. Greer, 354 So.2d 1109, 1110-11 (Miss. 1978). The appellants also point to Woodward v. Bangs, 234 So.2d 633 (Miss. 1970), in which we held that the jury's verdict in favor of the defendant was supported by the evidence where the parties' versions of the events causing the collision were in "hopeless conflict," but the defendant's position was supported by the testimony of two Mississippi Highway Patrol officers who investigated the accident. Woodward, 234 So.2d at 633-34.
¶5. In this case, the testimony of the parties is completely at odds as to the cause of the collision, each side claiming that the other crossed the center line in the road. The appellees' theory was that Mr. Coleman was late picking up the children on his bus route on the morning of the accident, and was therefore traveling too fast around the curve of the road. The testimony of all three appellees placed the time of the wreck around 8:00 a.m., and Officer Tom Delancy's accident report supported their estimate. Also, Mr. ...