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Fielder v. Magnolia Beverage Co.4/29/1999
Turner than that of reasonable care); Crossley v. James, 365 So.2d 957 (Miss.1978) (holding that it was reversible error to grant an instruction which places upon defendant the burden of avoiding a collision); Jones v. Phillips, 263 So.2d 759, 762-63 (Miss.1972) ("avoid the collision" and "vigilant lookout" instructions were erroneous, because both instructions, considered together, placed a higher duty upon defendant than the law requires); but see Miles v. Duckworth, 481 So.2d 757, 758 (Miss.1985) (upheld an instruction that stated that if defendant "failed to keep a reasonable and proper lookout for other traffic and vehicles; or if he failed to have his vehicle under reasonable and proper control.... then such action or actions, if any, ... constitutes negligence").
. MBC argues that no such burden or duty was placed upon Lanice Fielder by instruction D-13. As evidence thereof, MBC contends that instruction D-13 is virtually identical to an instruction approved by this Court in a recent case. Church v. Massey, 697 So.2d 407, 412 (Miss. 1997). There, the instruction at issue read:
"You are instructed that it was the duty of the Plaintiff, Gary W. Church to drive his motorcycle at a reasonable rate of speed under the circumstances then confronting him. It was also his duty to keep a reasonable lookout to the front and sides of his moving motorcycle to keep it under reasonable and easy control and anticipate and expect the presence of other vehicles which were also using 8th Street at the same time." Id.
Likewise, this Court approves instruction D-13, because upon comparison the two are in fact virtually identical.
. In regards to instruction D-14, the Fielders offer this Court no argument other than their objection made at trial. At trial, the Fielders objected on grounds that " t's not every curve in this road that a person is required to reduce the speed." The trial court overruled the objection. MBC contends that the trial court properly gave instruction D-14, because Miss. Code Ann. § 63-3-505 states, in pertinent part, that " he driver or operator of any motor vehicle must decrease speed when . . . approaching and going around a curve." Miss. Code Ann. § 63-3-505 (1996).
. In Vise v. Vise, 363 So.2d 548 (Miss. 1978), this Court approved an instruction requiring the driver of a motor vehicle to decrease speed when approaching and going around a curve. Id. at 551. Therefore, according to statutory mandate and case precedent, we hold that the trial court properly granted instruction D-14. Read as a whole and in context, instructions D-13 and D-14 fairly announce the law and create no inJustice; thus, no reversible error is found.
V. THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL.
. As the trial court was preparing jury instructions, the Fielders raised a charge of misconduct against the jury bailiff, Albert Chisolm. The Fielders contend on appeal, as they did at trial, that the bailiff made prejudicial remarks to the jury justifying the trial Judge declaring a mistrial. The Fielders argue that they heard the bailiff tell the jury that the case was being delayed by Fielders' counsel. Further, upon hearing this statement, the jury erupted into laughter. The Fielders argue that a mistrial should have been granted under Uniform Rules of Circuit and County Court Practice Rule (UCCCR) 3.12.
. The record indicates that the trial Judge heard testimony outside the presence of the jury from Lanice Fielder, Steven Fielder, Bobbie Fielder, and Albert Chisolm regarding exactly what was said. According to the bailiff, he advised the jury that he was going to determine how much longer their wait would be when one of
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