#### HEARIN-MILLER TRANSPORTERS, INC. and W. F. Mann Bob Lee CURRIE.

No. 46120.

Supreme Court of Mississippi.

May 3, 1971.

Rehearing Denied June 7, 1971.

Butler, Snow, O’Mara, Stevens & Can-nada, Jackson, Gillespie & Gillespie, Raymond, for appellants.

Daniel, Coker, Horton, Bell & Dukes, Jackson & Gulfport, Alben N. Hopkins, Gulfport, William Ferguson, Raymond, for appellee.

*452ROBERTSON, Justice:

The Circuit Court of the Second Judicial District of Hinds County, Mississippi, rendered judgment for $100,000.00, based on a jury verdict, in favor of plaintiff, Bob Lee Currie, and against defendants, Hearin-Miller Transporters, Inc. and W. F. Mann. The defendants appeal from that judgment.

This is the third case based on the same tragic automobile-tractor-trailer collision to reach this Court.

In Newman v. Hearin-Miller Transporters, Inc. and W. F. Mann, 214 So.2d 684 (Miss.1968), the trial judge in giving a directed verdict for the defendants when the plaintiff rested, said:

> “I have decided as a matter of law that the Plaintiff has not sustained the burden of proof by a preponderance of the evidence and shown this truck was on the wrong side of the road. And, therefore, I have decided and you are directed to find for the Defendant.”

We affirmed the judgment of the trial court without opinion.

The second case was that of the heirs of Everett Wayne Price, the driver of the automobile, against Hearin-Miller Transporters, Inc. and W. F. Mann, 220 So.2d 813 (Miss.1969). That case was allowed to go to the jury, and the jury returned a verdict for the defendants. We again affirmed without written opinion.

The same witnesses testified in all three cases. The sole question in all three cases was whether the tractor-trailer crossed the center line, got in the wrong traffic lane, and thus negligently caused the fatal collision. The burden of proving this rested squarely on the plaintiff in all three cases. If, after all the evidence was in, there was not more than a scintilla of evidence supporting the plaintiff’s position, then the defendants were entitled to a directed verdict because Mississippi does not follow the scintilla rule. Berry v. Brunt, 252 Miss. 194, 172 So.2d 398 (1965).

W. F. Mann, the driver of the tractor-trailer unit, was the only eyewitness, and he was called as an adverse witness by the plaintiff in all three cases. He testified clearly, positively and unequivocally that after delivering a load of lime in his tank-trailer to a construction job near Hazle-hurst, Mississippi, on the night of June 18, 1966, he had a hamburger and cup of coffee at a little cafe near Hazlehurst, and headed back to Vicksburg via Utica. His brother, Donald Mann, also driving a tractor-trailer unit for Hearin-Miller, had headlight trouble, so they both stopped in Utica to fix the voltage regulator on Donald Mann’s tractor. They left Utica about 12:30 A.M. June 19th, with Donald Mann in the lead.

About 8 miles north of Utica on State Highway 27 as W. F. Mann was proceeding in a northerly direction down a slight decline and curve to the left, he noticed the lights of an oncoming vehicle shining over a small hill to the north. Mann testified that he immediately dimmed his lights and proceeded north in his proper lane. The southbound automobile topped the little hill in the proper lane, but, when about 125 feet from Mann’s tractor-trailer unit, drifted over the center line into Mann’s northbound lane, which would be the east lane of the highway. Mann immediately hit his brakes. He attempted to turn his unit to the right, but the car was upon him so quickly that he had no time to act.

The car first hit his left front bumper, fender and wheel a glancing blow, then hit the left saddle tank of the tractor and the left dual pusher wheel a terrific blow. The ladder, about midway down the left side of the trailer transport tank, was bent underneath, and the left rear dual wheels received the final blow. Mann was knocked to the floorboard of the tractor and it veered over on the east shoulder of the highway. Mann said he continued to hold on to the steering wheel with his left hand and as he began to pull on the steering wheel the unit moved from the east shoulder across the highway and ran into a *453dirt bank on the west side. He testified positively and unequivocally that he kept his tractor-trailer unit in the proper northbound lane at all times, until after the impact when he lost control of his unit.

Both highway patrolmen Dillon, who investigated the accident, and McClain, who assisted him and also took pictures of the vehicles and the accident scene, testified that there was a gouged-out place in the asphalt about 16 inches east of the white center line of the highway in the tractor-trailer’s northbound lane, and that there was a yellow line on each side of the white center line. The left front wheel of the Price car was completely knocked off, leaving the axle bare, and both patrolmen testified that they traced the path of the car from the gouged out spot in the east lane to its final location about 145 feet away. They also traced the course of the tractor-trailer unit from this gouged-out spot to its final resting place about 154 feet away.

Both patrolmen testified that the skid marks south of the gouged-out spot in the paving were made by the tractor-trailer unit and were in its proper northbound lane, and that there was no evidence that the tractor-trailer unit ever crossed the center line until after impact when the driver lost control and it veered first to the right and then to the left across the highway to its final stopping place.

Edward McGuffee, a friend of all those in the Price car, testified that he had seen them in Vicksburg the night of the accident, and then came along after the accident and saw the Price car, the boys, and the accident scene. McGuffee testified that he had noticed a recent hole in the road on the west side of the center line about 75 or 80 feet from the gouged-out spot on the east side of the center line.

Maurice Little, who was driving Mc-Guffee’s car on the return from Vicksburg, testified in the Newman case that he also had noticed the hole on the west side of the center line but, of course, did not know when or what vehicle, if any, had made it. Little had died before the Currie case, so his testimony in Newman was read to the jury. Patrolman Dillon testified that he saw the hole that McGuffee mentioned, but that there were no marks or tracks of any kind leading to or from it.

The record thus stands with the uncon-tradicted testimony of the only eyewitness, W. F. Mann, being that he was proceeding in a northerly direction in the east lane of State Highway 27 when the Price automobile suddenly drifted over into his (Mann’s) lane, that he immediately applied his brakes and attempted to turn his unit to the right, but the Price car was already upon him, hitting his tractor first at the left front bumper and continuing on down the left side of the tractor and trailer until the final blow to the left rear wheels of the trailer.

The physical evidence apparent in the photographs introduced as exhibits, and the testimony of the two trained accident investigators Patrolmen Dillon and McClain, bear out and support Mann’s testimony of how the fatal accident happened.

The isolated hole in the asphalt, which McGuffee and Little mentioned, was not causally connected by them in any way with the accident. They did not and could not testify when, how or what made the hole. Although Patrolman McClain assisted in the investigation and took the pictures introduced as exhibits, he testified that he didn’t even notice the hole mentioned by McGuffee and Little. To try to figure out when, how and what caused this slight hole would require the wildest kind of conjecture, speculation and imaginative guessing. The mere mentioning of this hole by McGuffee and Little does not even amount to a scintilla of evidence. In Berry v. Brunt, 252 Miss. 194, 172 So.2d 398 (1965), we said:

> “The Court has repeatedly held that in trials under the common law, to prove a ‘possibility’ only, or to leave the issue to surmise and conjecture, is never suffi*454cient to sustain a verdict in a tort action. *A mere scintilla of evidence of negligence is insufficient to make a jury issue.*The scintilla rule of evidence is not recognized in this State.” (Emphasis Added). (Citing numerous Mississippi cases). 252 Miss, at 203, 172 So.2d at 402.

We deem it completely unnecessary and a waste of time to discuss W. F. Mann’s anguished remarks made at the scene immediately after the accident. Certainly he was upset and emotional. Any normal person involved in such an accident would have been worried and concerned about breaking the tragic news to the parents of the dead boys. Negligence cannot be inferred or presumed from such concern and solicitude.

In McConnell v. Eubanks, 193 So.2d 425 (Miss.1966), and in Denman v. Denman, 242 Miss. 59, 134 So.2d 457 (1961), we quoted with approval the following rule of law found in 38 Am.Jur., Negligence, section 345 at 1050 (1941):

> “Thus, if an accident appears upon the evidence to be as consistent with the absence of negligence for which the defendant is responsible as with the existence of such negligence, *the plaintiff must fail, and the case should not be left to the jury.’’*(Emphasis added).

In Ryals v. Douglas, 205 Miss. 695, 39 So.2d 311 (1949), this Court said:

> “The rule is that the testimony of a witness which is uncontradicted, and who is not impeached in some manner known to the law, where he is not contradicted by the circumstances, must be accepted as true. It is true that the direct evidence of a witness may be contradicted by circumstances, but in such case the circumstances relied on for contradiction must be inconsistent with the truth of the testimony. ‘When the testimony of a witness is not contradicted, either by direct evidence or by circumstances, it must be taken as true.’ Stewart v. Coleman [& Co.], 120 Miss. 28, 81 So. 653.” 205 Miss, at 722, 39 So.2d at 317.

This rule of evidence was also quoted with approval in *McConnell.*

Our thoughts in this case were well expressed in Tombigbee Electric Power Association v. Gandy, 216 Miss. 444, 62 So.2d 567 (1953), when the Court there said:

> “Reluctant as we are to disturb the verdict of the jury we cannot close our eyes to the well-established principle that verdicts must rest upon reasonable probabilities and not upon mere possibilities. Since no reasonable probability appears in this case it is our conclusion that the peremptory instruction requested by appellant should have been granted and the judgment of the lower court will accordingly be reversed and judgment will be here entered in favor of appellant.” 216 Miss, at 456-457, 62 So.2d at 571.

After the evidence for both sides was in, the trial court should have instructed the jury to return a verdict for the defendants. It follows, therefore, that the judgment for the plaintiff should be and is reversed and judgment rendered here for the defendants.

Reversed and rendered.

ETHRIDGE, C. J., GILLESPIE, P. J., and RODGERS, BRADY, SMITH, and HARPER, JJ., concur.

INZER and PATTERSON, JJ., dissent.

INZER, Justice

(dissenting):

With due deference I must dissent for the reason that the majority opinion clearly reflects that in deciding this case, this Court has departed from the long established rule that the verdict of the jury in this case resolved all conflicts of the evidence in favor of Currie and from the rule that in deciding whethér appellants were entitled to a directed verdict, we must view *455the evidence in the light most favorable to the party in whose favor the jury decided and assume that the jury drew every permissible inference in his favor.

At the outset it should be pointed out that we are not concerned in this case to what happened in the other two cases growing out of this accident that came to this Court. The records in those cases are not a part of the record in this case and should have no bearing on our decision. We are concerned here with the review of the record made in the trial court in this case. However, if we are to consider the other two cases, we should also consider the fact that counsel for appellants earnestly contended in the prior case of Price v. Hearin-Miller Transporters, Inc. and W. F. Mann, 220 So.2d 813 (Miss.1969), that the evidence there made a jury issue.

Appellee, Boh Lee Currie, was riding as a passenger in an automobile driven by Everett Wayne Price. They were returning to Utica from Vicksburg. Currie was in the backseat and was asleep at the time of the accident. He was severely injured in the accident and was unconscious until the following day. As a result of the accident, he lost his left eye. His right eye had always been defective and as a result of the accident is now practically blind.

The majority opinion makes the bold assertion that the testimony of W. F. Mann, the only living eyewitness to the accident, is uncontradicted. With this statement, I am unable to agree. There was evidence in this record from which the jury could find that Mann was operating the vehicle in excess of the speed limit and that the accident did not occur wholly in his lane of traffic. The jury was not required to find that the negligence of Mann was the sole proximate cause of the accident, it was only required to find that he was guilty of some negligence that caused or contributed to Currie’s injuries. Any negligence of the driver of the vehicle in which Currie was riding cannot be attributed to him.

The witness McGuffee, whose testimony we must take as true, testified that he and Maurice Little arrived at the scene of the accident shortly after it happened. As they approached the scene of the accident they saw the truck diagonally across the road. They pulled around the truck and stopped. They asked Mann what happened, and he replied, “I don’t know. We had an accident.” Later when he told Mann that two of the boys were dead, Mann said, “I’m sorry. What can I tell their mother?” McGuffee later heard Mann say to Wayne Price’s brother, “I am sorry. Sorry. I didn’t mean to do it.” While these statements by Mann are not necessarily an admission of negligence, the jury had a right to consider them in passing on Mann’s version of how the accident happened. He also heard Mann tell the patrolman who was investigating the accident and talking with Mann about how fast he was going, “I was cutting around 55.” McGuffee testified that he examined the hole cut out in the asphalt referred to as Point I in the majority opinion and which was in the driver of the car’s lane of traffic, and this hole had debris, chrome and other matters scattered around it. He also noted skid marks in the opposite lane of traffic, which he pointed out in one of the photographs in evidence. He said he discussed with Patrolman Dillon that this place was probably the point of impact. The testimony of Maurice Little was to the same effect relative to the statements made by Mann, and he also observed the gouged out place testified to by McGuffee and saw the skid marks made by dual wheels in the opposite lane of traffic. In addition to this testimony, the jury had the benefit of the photographs taken at the scene of the accident, from which they could determine for themselves in the light of all the testimony in which lane of traffic the point of impact occurred. The jury could also consider the admission of Mann that his vehicle did cross over the center line of the highway. Mann contended that his vehicle did not cross over the center line until after the impact, but it was probably as diffi*456cult for the jury as it is for me, to understand how he was knocked to the floorboard by the force of the impact and was able to pull his vehicle to the left and then back to the right while still in that position.

It was in the light of these facts that the trial judge submitted the issues involved in this case to the jury, and in my opinion, he was correct in doing so. It is sometimes difficult for us when we think a jury has reached the wrong decision to refrain from retrying the case in this Court. In my opinion, that is what has happened in this case. It may well be that the verdict of the jury is against the overwhelming weight of the evidence, but there is a vast difference between a finding that the verdict is against the overwhelming weight of the evidence and that there was not sufficient evidence to make a jury issue. The least appellee is entitled to in this case is to let another jury pass upon the facts of the case.

PATTERSON, J., joins in this dissent.