Thomas v. McDonald

667 So. 2d 594 (Miss. 1995)



For the doctrine of negligence per se to apply, the plaintiff must show that he is a member of the class that the statute was designed to protect and that the harm he suffered was the type of harm that the statute was intended to prevent.


The deceased, the administratrix's brother, was injured in early March 1990 when his pick-up truck collided with a "gang truck" owned by the trucking company and operated by the employee. The gang truck had stalled on a hill, blocking the eastbound lane of the highway. Although it was about 6:30 p.m., the employee had provided no warning to the other drivers on the road. The deceased filed a complaint alleging negligence. After the deceased died from pre-existing congestive heart failure, the administratrix was substituted as plaintiff. During trial, the court denied the administratrix's request for jury instructions, which required warning devices for vehicles stopped on public roadways. Defendants, employee and trucking company, contended that they did not have time to move the truck or to provide any warning that it was blocking the road. The jury returned a verdict for the defendants. The case was appealed to the Supreme Court of Mississippi.


Should a negligence per se instruction have been given?




Mississippi law required the operator of any motor truck or bus stopped upon the highway (except for picking up or discharging passengers) between the hours of one half hour after sunset and one half hour before sunrise set out reflectors or other warning devices. The gang truck had no such devices. Thus, the court held that the administratrix was entitled to a negligence per se instruction. Because the administratrix failed to establish the requisite time component of the statute, however, she was not entitled to one of the requested instructions. The court reversed and remanded the lower court's decision to deniy the administratrix's jury instruction.

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