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Dunnam v. Abney

Court of Appeals of Mississippi

November 12, 2013

ELIZABETH DUNNAM, APPELLANT
v.
DARRIN ABNEY AND HOPE ABNEY, APPELLEES

COURT FROM WHICH APPEALED: JASPER COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/08/2012. TRIAL JUDGE: HON. EDDIE H. BOWEN. TRIAL COURT INSTRUCTED JURY TO FIND FOR THE APPELLEES.

FOR APPELLANT: WILLIAM DRIBBEN MONTGOMERY, TOBY JUSTIN GAMMILL.

FOR APPELLEES: DAVID GARNER, EUGENE COURSEY TULLOS.

IRVING, P. J. GRIFFIS, P.J., ROBERTS, CARLTON AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. ISHEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., BARNES, AND JAMES, JJ.

OPINION

Page 877

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

EN BANC.

IRVING, P. J.:

¶1. This appeal arises from a negligence action stemming from an automobile accident that occurred between Hope Abney (Hope) and Elizabeth Dunnam in Laurel, Mississippi, on January 28, 2010. As a result of the accident, Darrin Abney (Darrin), a passenger in the car driven by his wife, Hope, filed suit against Hope and Dunnam. Subsequently, Hope filed a cross-claim against Dunnam. On February 8, 2012, a Jasper County jury awarded damages to Hope and Darrin against Dunnam at the instruction of the circuit court. Feeling aggrieved, Dunnam appeals and argues that the circuit court erred in instructing the jury to find for Hope on the cross-complaint, thereby precluding the jury from apportioning fault.

¶2. Finding no error, we affirm.

FACTS

¶3. On January 28, 2010, an automobile driven by Dunnam was traveling west on Jefferson Street in Laurel, Mississippi. In the meantime, an automobile driven by Hope was traveling south on Ellisville Boulevard. Both vehicles approached the intersection of Jefferson Street and Ellisville Boulevard at approximately the same time. However, it is undisputed that Hope had the right-of-way and was not speeding. The weather conditions were reported as clear and dry. Upon reaching the intersection, Dunnam either paused or came to a complete stop at the stop sign that regulated westbound traffic on Jefferson Street, before pulling out into the intersection where she was struck by the automobile driven by Hope and occupied by Darrin. The front center of Hope's vehicle made impact with the front passenger side of Dunnam's vehicle.

¶4. At trial, Hope, Darrin, and Dunnam were the only ones who testified as to the events of that day. Dunnam testified that

Page 878

she was unfamiliar with the intersection and had only taken that route due to construction issues in Laurel at the time. She asserted that because the road angled and was not straight, she was unable to clearly see cars approaching from her right side. She stated that she came to a complete stop at the stop sign and looked to both her left and her right before proceeding out into the intersection at less than five miles per hour, but did not see Hope's vehicle until the point of impact. Dunnam admitted that her failure to see Hope's vehicle was the cause of the accident, as shown in the following colloquy:

Q. All right. Well, let me ask you this. Would you agree with me, Ms. Dunnam, that your inability or your failure to see Mrs. [Hope] Abney is what caused this accident?

A. Yes, sir.

Q. There's no dispute about that, is there?
A. No, sir.
Q. And even though you didn't mean it to happen --
A. Right.
Q. Right.
Q. - - what did happen, you caused by not seeing?
A. Right.
Q. And there's no question in your mind about that, is there?
A. No, sir.
Q. And the jury should have no question about that?
A. No, sir.
Q. That the accident, while it is regrettable, was caused by your failure to see her?
A. Right.
Q. Now, do you know of anything that the driver of the car Mr. Abney -- Darrin was riding in could have done to prevent the accident?
A. Unless she had seen me and swerved out of the way or slammed on brakes.
Q. But you don't contend she was ...

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