IN THE SUPREME COURT OF MISSISSIPPI

NO. 92-CA-00356-SCT

MISSISSIPPI POWER & LIGHT COMPANY

v.

LESLIE LUMPKIN, INDIVIDUALLY AND AS

MOTHER AND NEXT FRIEND OF KRISTEN

BLACK, A MINOR

DATE OF JUDGMENT: 02/13/92

TRIAL JUDGE: HON. JAMES E. GRAVES

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: NATIE P. CARAWAY

ATTORNEY FOR APPELLEE: WILLIAM LISTON

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION: REVERSED AND REMANDED - 2/26/98

MOTION FOR REHEARING FILED: 3/19/98

MANDATE ISSUED: 8/17/98

EN BANC.

BANKS, JUSTICE, FOR THE COURT:

¶1. Here we consider the question whether a utility company may be liable for injuries suffered by a

passenger where a negligent driver strikes one of its poles in a public right-of-way, off the traveled

portion of a highway. We answer the question in the affirmative, where a properly instructed jury

finds that there was negligence in the placement or maintenance of the pole and that such negligence

proximately contributed to the accident and injuries sustained. We overrule our prior decision in

Vines v. Southwestern Mississippi Elec. Power Ass'n, 241 Miss. 120, 129 So. 2d 396 (Miss. 1961)

to the extent that it is inconsistent with the conclusion reached today. The judgment for the plaintiffs

is reversed because we conclude that the trial court improperly excluded certain evidence. We

remand for further proceedings consistent with the principles announced today.

I.

¶2. Leslie Lumpkin filed this complaint in the Hinds County Circuit Court on February 20, 1990, on

her own behalf and on behalf of Kristen Black, her daughter, against Randy Tackett and Mississippi

Power and Light Company (MP&L). MP&L is a Mississippi corporation engaged in the business of

the generation, manufacture, transmission, distribution and sale of electricity within the State of
Mississippi.

¶3. The complaint alleges that on November 23, 1989, at approximately 11:30 p.m., Kristen was

severely injured after coming in contact with an uninsulated electrical distribution line installed by

MP&L. Kristen had just exited Tackett's automobile, which had crashed into a power pole supporting

the high voltage lines. The complaint states that as a direct and proximate result of the negligence of

both Tackett and MP&L, Kristen was seriously and permanently injured. Tackett was charged with

failing to maintain proper control over his vehicle. Lumpkin alleged that MP&L was negligent in

failing to design, construct, install and maintain its power distribution poles and lines in relation to the

roadway and its right-of-way so as to reasonably reduce hazard to life. Lumpkin also contended that

the placement, construction, maintenance and location of the pole constituted a public nuisance.

¶4. MP&L answered on March 6, 1990, and maintained that it was not negligent, nor had it created a

reasonably foreseeable hazardous condition by the placement of the utility pole involved in this case.

MP&L claimed that Tackett had operated his vehicle while under the influence of intoxicating

beverages, and that he was therefore negligent as a matter of law. MP&L alleged that Kristen was

negligent in failing to properly watch for the downed power lines and for voluntarily riding in

Tackett's automobile when she was aware that Tackett had consumed alcohol.

¶5. Trial of this case commenced on January 27, 1992. At that time, Tackett brought forth a motion

in limine to prohibit any evidence of his consumption of alcohol on the night of the accident. The

trial court granted Tackett's motion, finding that the probative value of the evidence was substantially

outweighed by prejudice because prior to trial he admitted that he was negligent in the operation of

his vehicle. He continued to deny that his negligence proximately caused Kristen's injuries.

¶6. The jury returned a special verdict in which it found Kristen fifty percent at fault, MP&L fifty

percent at fault, Tackett not at fault, and awarded damages in the amount of $750,000.00. On

February 20, 1992, MP&L filed a motion for judgment notwithstanding the verdict and alternatively

for a new trial. The plaintiffs filed a motion for an additur in the event the trial court granted MP&L's

motion for a new trial on the issue of the reformed jury verdict. However, Judge Graves denied

MP&L's post-trial motions, and consequently did not reach the plaintiff's motion for an additur.

MP&L appeals the trial court's ruling.

II.

¶7. On the night of November 23, 1989, Tackett and several passengers were riding in Tackett's 1983

Ford Mustang. Among the passengers were Crystal and Heather Barry, Shane Acy and Kristen

Black. Tackett was driving the group back to Greenwood, Mississippi, after going to Philip,

Mississippi, to see where Kristen's boyfriend lived.

¶8. Tackett realized that he was beginning to take an extremely sharp curve. He recalled traveling at a

speed of at least fifty-five miles per hour. According to Kristen, as Tackett neared the curve on

Money Road she stated, "Randy you know, there is a bad curve up ahead." He tried to make the

curve by slowing down and moving over the center line to the left. At that time Tackett's brakes

locked up and Tackett lost control. The car slid off the road and severed a utility pole. He testified

that he never saw the utility pole even as the car drove through it.
¶9. After the Mustang collided with the pole and came to a stop in the field, Kristen wanted to get

out of the car because she did not know what condition the car was in at that time. No one had been

injured in the automobile accident. She stated that she was nervous and scared as she exited the

vehicle. The area was completely dark as there were no street lights, and Kristen removed her shoes

because they were sticking in the mud. She did not know that a power pole had been knocked down,

nor did she see the downed power lines.

¶10. The next thing she remembered was lying in the ditch by the road. She did not know what had

happened, but she was cold and crying because her left arm was in severe pain. She stated that her

left arm was hurting so bad that when she tried to hold her arm, she felt nothing but her sweater.

Tackett said that it was so dark that he didn't see the downed electrical wire until after Kristen had

been electrocuted. Tackett then pulled her out from under the wire.

¶11. Heather Barry testified that she had also started walking toward the road with Kristen, but

stopped when she saw the wires hanging. She said "Kristen, don't go up there. There's wires up

there." Kristen told her that she was just going to go up under them. Kristen kept walking and

Heather saw her bend over. Heather then heard a buzzing noise and saw sparks and Kristen's face

light up. Kristen fell over on her back. Heather did not notice any buzzing, crackling or any light

coming from the wire prior to Kristen's contact with the wire.

¶12. Dr. Joe Keith Robbins was on emergency room duty at the Greenwood Leflore Hospital on

Thanksgiving Day of 1989. Kristen was brought into the emergency room shortly after midnight.

Kristen's injuries involved third degree burns to the left wrist. Dr. Robbins stated that her burns

extended all the way into the bone and up to her shoulder. There was very little flesh remaining

around the distal forearm. Kristen, emotionally distraught and in critical condition, was transferred by

ambulance to the Burn Center in Greenville, Mississippi.

¶13. Dr. Robert Love first saw Kristen at the Burn Center in the early morning hours of November

24, 1989. He carried out a physical examination and determined that she had a severe burn resulting

from an electrical injury. Her injuries were very severe to her left upper extremity, and she was also

severely burned in the buttocks and the sacral or lower back area. With regard to the injury to

Kristen's left arm, there was no remaining muscle tissue or blood vessels. He determined that her arm

was non-viable and that amputation was necessary.

¶14. From the time of her admission to the time of her discharge, Kristen spent one month and two

days at the Burn Center. Kristen underwent four operations while she was in the Burn Center. The

first was to amputate the left arm and a portion of the shoulder and a portion of the chest. Kristen's

second operation on November 28, 1989 consisted of a skin graft to treat the burn to the buttock

area. The third surgical procedure involved the removal of more dead muscle and a repeat of the skin

graft from the second operation. In her fourth and final operation on December 19, 1989, a screw

was inserted into the remaining portion of the bone in her upper left arm.

¶15. Mrs. Lumpkin stated that the majority of Kristen's post-amputation pain was in the form of

phantom pain, which occurred almost every day. Phantom pain is a condition where a patient, after

amputation of an extremity, still feels pain in the extremity. In Kristen's case, Dr. Love said that she

might continue to feel pain in her left hand even though it has been amputated. Kristen said she still

felt that pain as of the time of trial.
¶16. Kristen was fitted with an artificial limb at the Methodist Rehabilitation Center. The bill for Dr.

Love's services in treating Kristen amounted to $6,245.00. The bills from the Delta Medical Center

totaled $54,732.90. Miscellaneous charges from the hospital pharmacy and supply totaled $5,341.69.

Mrs. Lumpkin testified that the total amount of medical bills incurred on behalf of Kristen up to the

time of trial totaled $87,007.08. Mrs. Lumpkin had also incurred out-of-pocket expenses in the

amount of $2,991.00

¶17. Mrs. Lumpkin did not think Kristen "cared too much about life" after the accident. She said

Kristen made statements like "life is really no fun" or "life is really not worth living" or "nobody really

cares anyway" or, "what's the point?" During treatment of Kristen, Dr. Love consulted with Dr. Gil

McVaugh, a clinical psychologist, in regard to what Dr. Love believed to be a potential mental

disorder in Kristen. She was generally depressed. Upon being discharged from the Burn Center,

Kristen returned every other day on an outpatient basis. Kristen improved physically, but Dr. Love

thought that she deteriorated mentally.

¶18. Dr. Michael Whelan, a practicing psychologist, saw Kristen at the emergency room on January

15, 1990, after she was found by the police because she tried to run away from home. Dr. Whelan's

diagnosis was that Kristen was suffering from an adjustment disorder or perhaps major depression.

Dr. Whelan began seeing Kristen on a regular basis after this incident. He learned that prior to

sustaining the injury involved in this case, she had been diagnosed with oppositional defiance

disorder. She was apparently more rebellious and more argumentive than the average teenager. In Dr.

Whelan's opinion, the loss of her arm would exacerbate all of her preexisting problems such as her

difficulty in expressing emotions. His diagnosis was that she had a permanent personality disorder

involving emotional scars so deep that they were going to interfere significantly with the rest of her

life. He was of the opinion that her various psychological problems with regard to the diagnosis and

her prognosis were directly related to the injury she sustained on November 23, 1989.

¶19. Mr. Harold G. Fortenberry, a vocational rehabilitation consultant, testified that Kristen suffered

a twenty to fifty-five percent loss of wage-earning capacity as a result of the accident.

¶20. Deputy Gibson of the Tallahatchie County Sheriff's Department investigated the scene around

midnight on November 23, 1989. The power pole had been broken in three pieces. At its lowest

point, the power line was three or four feet off the ground. He noticed there were no street lights or

any other roadway lighting in the area where Kristen was injured. Deputy Gibson measured eighty

feet of skid marks leading to the edge of the road. He agreed that Tackett's automobile must have

been airborne when it struck the pole. The car came to a halt about thirty yards out into the field.

Because it was muddy, the car stopped shorter than it would have had it been dry. There were no

signs warning drivers to slow down as they approached the curve.

¶21. Mr. William Vaughn, an MP&L senior lineman, helped build the Money Road power line. It was

a distribution line carrying eight thousand volts of electricity. The pole that Tackett's automobile

struck supported only two wires, one carrying electricity and one ground wire. Vaughn stated that it

was company policy to recognize and report hazardous conditions involving power lines. He was

familiar with the curve on Money Road where the accident occurred because he noticed skid marks in

the curve even before the pole was installed. A pole in the same location as the one Tackett collided

with was struck and broken when a vehicle missed the curve in Money Road and hit the guy wire in
1984.

¶22. Vaughn stated that all the supervisors, the people in the district office, and the crews working on

Money Road knew that cars regularly ran off that portion of Money Road. The original engineering

plans for the Money Road line did not provide for placement of a power pole where the power pole

was ultimately positioned. The line crew was unable to comply with the plans drawn by the engineer

because of an obstruction, namely an ammonia tank, and also the fact that the guy wire would have

extended into a farmer's cotton field.

¶23. Bob Marsh stated that MP&L never tried to predict, in determining the location of its utility

poles, where an out of control car would run off the road. He admitted that after the similarly located

utility pole was struck in 1984, MP&L knew that cars could come in contact with the pole. Marsh

indicated that MP&L did not attempt to relocate the pole for the same reasons that the utility pole

was positioned there in the first place, namely, because the pole would have interfered with an

ammonia tank and a cotton field.

¶24. Marcus Williams, an expert in the field of highway construction and engineering, opined that the

utility pole was unreasonably dangerous because of its location. The curve in question was basically a

flat curve that angled somewhere between sixty and ninety degrees. He said that the curve was so

sharp that people should have been expected to fail to negotiate the curve. He said the pole was

within a one-hundred-foot danger zone where a car would travel if it failed to make the curve.

Williams further stated that following the original plans would have been a solution to this problem.

Williams also stated that the placement of this pole, including its high-powered electric charge, was

extremely dangerous and constituted a public nuisance to the traveling public.

¶25. Yerby Hughes, an electrical engineer with four years' experience in the design and construction

of the type of power line involved in this case, stated that the applicable safety code for this type of

construction and maintenance was the National Electrical Safety Code (NESC). Hughes pointed out

§ 211 of the NESC, which stated that "all electric supply and communication lines and equipment

shall be installed and maintained so as to reduce hazards to life as far as is practical." He believed that

MP&L's placement of the pole in question was a violation of that code section.

¶26. Walter Neel, an expert in the fields of civil and traffic engineering, stated that based upon a

reasonable professional probability, the Money Road power pole involved in this case constituted a

foreseeable risk of harm to the public. Although there was a warning sign located about 390 feet

from the center of the curve, Neel said that it falsely indicated that the curve was gentle. Neel

determined that a safe speed for maneuvering the curve would be approximately twenty-five miles

per hour.

III.

¶27. MP&L first asserts that the trial court erred in failing to grant its motion to dismiss, its motion

for summary judgment, its motion for directed verdict, its motion for peremptory instruction, and its

motion for judgment notwithstanding the verdict. It also argues that the trial court erred in granting

Jury Instruction P-4, and in failing to grant Jury Instructions MD-15 and MD-12. Under this

assignment of error we are asked to determine whether, under any circumstances, a utility company

may be held liable for injuries sustained when an admittedly negligent driver collides with a pole
constructed for the purpose of distributing electricity, when the pole is located within the public

right-of-way off the main-traveled portion of a road.

¶28. MP&L argues that Vines v. Southwestern Mississippi Elec. Power Ass'n, 241 Miss. 120, 129

So. 2d 396 (1961) answers the question as follows: if someone goes off the main-traveled portion of

the road, thus taking the driver out of the category of drivers making ordinary or common use of the

road, the utility company is not subject to liability. MP&L maintains that electric utilities are not

required to place their poles in order to insure the safety of reckless drivers. According to MP&L, the

reason it only has a duty of reasonable foreseeability to those making a proper use of the road is

because predicting where reckless drivers such as Tackett will leave a roadway is always

unforeseeable. In other words, MP&L suggests that it should not be charged with the responsibility

of protecting against negligent drivers who collide with a pole that is located within the public rightof-way but off the main-traveled portion of the road.

¶29. On the other hand, Lumpkin argues that if MP&L knew or should have known of the danger of

the placement of this particular utility pole within the public right-of-way (as evidenced by the

number of off-road occurrences in this location including one in which the guy wire of this pole was

actually hit and the pole knocked down), MP&L at least had a duty to eliminate the danger to the

extent practical.

¶30. Miss. Code Ann. § 11-27-43, in pertinent part, states:

All companies or associations of persons incorporated or organized for the [purpose of

distributing and selling electricity] are authorized and empowered to erect, place and maintain

their posts, wires and conductors along and across any of the public highways, streets or waters

and along and across all turnpikes, railroads and canals, and also through any of the public

lands. . . provided in all cases such authorization shall meet the requirements of the National

Electrical Safety Code. The same shall be so constructed and placed as not to be dangerous to

persons or property; nor interfere with the common use of such roads, streets, or waters; nor

with the use of the wires of other wire-using companies; or more than is necessary with the

convenience of any landowner.

Miss. Code Ann. § 11-27-43 (1972) (emphasis added). This statute has remained in effect and

unchanged since January 1, 1972. The pole in question in this case was erected in 1980. Thus, MP&L

was then and is now authorized to erect power poles for the purposes of selling and distributing

electricity, so long as (1) the NESC requirements are met; (2) there is no resulting danger to persons

or property; (3) there is no interference with the common use of roads, streets and water; (4) there is

no interference with the use of wires by other wire-using companies; and, (5) the construction does

not unnecessarily inconvenience any landowner. Stated differently, the portion of the statute

highlighted above expresses several distinct requirements, each denoting a separate mandate.

MP&L's argument, relying solely on the third requirement (common use of roads), is therefore too

restrictive.

¶31. Section 20, ¶ 211 of the 1961 edition of the NESC provides:

All electric supply and communication lines and equipment shall be installed and maintained so

as to reduce hazards to life as far as practical.
It follows that MP&L has a duty to protect against hazards of which it has or should have

knowledge. This section of the NESC certainly does not limit MP&L's duty to protect against and

reduce only those hazards occurring on the main-traveled portion of the roadways.

¶32. We have recognized that the violation of the minimum standards established by the NESC

constitutes negligence per se. See Gifford v. Four-County Elec. Power Ass'n, 615 So. 2d 1166,

1173 (Miss. 1992) (failure to grant jury instruction that violation of NESC standards constitutes

negligence per se is reversible if evidence shows violation occurred). Moreover, the second

requirement of § 11-27-43, that power poles must be constructed in such a way so as to avoid

endangering people or property, says nothing about a utility company being immune from liability

when an accident occurs upon a public right-of-way off the main-traveled portion of the road.

¶33. MP&L argues that the facts in Vines are compellingly similar to the facts in the present case.

For all practical purposes that is so. We need not engage in any extensive fact comparison. This

matter must be resolved by determining whether the Vines formulation remains the law of this state.

¶34. The statute extant and quoted by the Vines Court, § 2778 of the Mississippi Code of 1942, as

amended and recompiled, read as follows:

All companies or associations of persons incorporated or organized for such purposes are

authorized and empowered to erect, place and maintain their posts, wires and conductors along

and across any of the public highways, streets, or waters and along and across all turnpikes,

railroads and canals, and also through any of the public lands; but the same shall be so

constructed and placed as not to be dangerous to persons or property; nor interfere with the

common use of such roads, streets, or waters; nor with the use of the wires of other wire-using

companies; or more than is necessary with the convenience of any landowner.

Vines, 241 Miss. 120, 125, 129 So.2d 396, 397 (quoting § 2778, Mississippi Code of 1942)

(emphasis supplied by the Vines Court). One legal distinction in these two cases is that the

predecessor statute relied on by the Court in Vines, in setting forth the requirements of power

pole/line construction, made no reference to the NESC; while, as pointed out above, the present

statute, Miss. Code Ann. § 11-27-43, which the trial court relied on in this case, fully incorporates

the requirements of the NESC. Otherwise, the statutes are essentially identical.

¶35. Lumpkin asks us to find that Vines has been overruled sub silentio, citing Spears v. Mississippi

Power & Light Co., 562 So. 2d 107 (1990). MP&L states that Lumpkin's argument must fail

because the Spears opinion does not address § 11-27-43, and because Spears did not involve the

location of a power pole along a public right-of-way. It argues that, unlike Tackett, the Spears driver

was driving in an area where he unquestionably had a right to be, not off on some untraveled area.

¶36. The issue in Spears was framed as follows:

[What is the] standard of care owed by an electric power company to an invitee of the business

property parking lot owner where the power company has an easement and right-of-way across

the parking lot, and the invitee of the property owner is injured on a rainy night when he

collided with a dark, unmarked power pole owned by the power company and which occupies a

portion of the premises where traffic normally flowed[?]
Id. at 108. We answered:

[c]ertainly, when we exercise our right to utilize our property, we have the duty to avoid

creating an unreasonable risk of harm to another. Restatement (Second) of Torts § 297 (1965).

Reasonable care is the care a reasonable person would exercise under like circumstances. Id.

§ 283. Measured by this standard, it would be a question for the jury to determine whether or

not the power company met this standard. Whether or not the pole was properly located,

lighted or otherwise marked; and whether or not a reasonable person would anticipate contact

between the light pole and moving vehicles are jury questions. Was the injury to the plaintiff or

to someone using the lot to park a vehicle, foreseeable or one which the defendant would be

obliged to anticipate? Was the pole adequately marked? Should it have been surrounded by

guard rails or some other device to prevent its being struck with the risk that the transformer

located on it might injure persons or property in its fall? We think these and other questions

presented material issues of fact which should have been presented to the jury. What we say

here is consistent with the case law of other jurisdictions which have discussed similar issues.

Georgia Power Co. v. Collum, 176 Ga. App. 61 334 S.E.2d 922 (1985) (power company

charged with duty of ordinary care in construction and maintenance of wires, poles,

transformer, and equipment). Hellman v. Julius Kolesar, Inc., 399 N.W.2d 654 (Minn. App.

1987) (applied common law test of duty which involves probability or foreseeability of injury to

plaintiff). Scheel v. Tremblay, 226 Pa.Super. 45, 312 A.2d 45 (1973) (in locating pole the

utility is charged with the duty to locate so as to avoid unreasonable and unnecessary dangers to

travelers upon the highway). Davis v. Chrysler Corp., 151 Mich. App. 463, 391 N.W.2d 376

(1986) (issue of breach of duty to properly maintain pole is question for jury). Bourget v.

Public Service Co.,98 N.H. 237, 97 A.2d 383 (1953) (question of improper placement and

maintenance of utility pole is for jury). Vigreaux v. La. Dept. of Transp. & Devel., 535 So. 2d

518 (La.App.1988) (jury question as to whether utility's placement of pole adjacent to road

constituted unreasonable risk of harm to users of road).

Spears, 562 So. 2d at 108 (emphasis added).

¶37. Spears' effect on the vitality of Vines is problematic. Vines dealt with our statute permitting the

use of utility poles in public right-of-way and, unlike in Spears, a driver who was not in the traveled

portion of that right of way. However, as previously noted, § 11-27-43 clearly mandates that a utility

company must not erect its power poles in such a manner as to endanger people or property. We find

that this is synonymous with the language in Spears to the effect that a utility company must avoid

creating an unreasonable risk of harm to others. Further, § 11-27-43, as enacted after the decision in

Vines, states that power poles must be erected in accordance with the provisions of the NESC, which

states that utility poles "shall be installed and maintained so as to reduce hazards to life as far as

practical." We hold that this places on a utility company the continuing duty to eliminate foreseeable

danger. Although the Spears case is factually distinguishable from the present case, the reasoning

behind placing these questions before a jury is equally applicable.

¶38. Whatever may be said for the proposition that Vines was overruled sub silentio by Spears, we

conclude that insofar as it stands for the proposition that a utility company owes no duty to persons

who may, through foreseeable negligence, come in contact with its poles, Vines must be overruled.

The duty of the utility company is to exercise reasonable care. That duty is not obviated by the failure
of the injured party or another to exercise such care unless it is determined by the factfinder that the

latter's conduct was the sole proximate cause of the injury. Vines' holding, if taken to mean that the

utility company is liable only to non-negligent drivers, is not in keeping with proper construction of

the statutory authority exercised by the utility or our law of comparative negligence. It is also at

variance with decisions involving other users of public rights-of-way, as shall be shown below.

¶39. As a matter of statutory construction, MP&L erroneously interprets the prohibition in § 11-27-

43 against interfering with "the common use" of the right-of-way as a restriction upon the command

that its use of the right-of-way be "not in a manner to be dangerous to persons or property." MP&L

contends that its duty to guard against danger to others is restricted to non-negligent others. Even a

casual reading of the statute indicates that the term "common use" does not refer to "proper" use or

even "ordinary" use but to use in general, that is, concomitant use by the public. Black's Law

Dictionary 345 (4th ed. 1968). Even if the term "ordinary" is deemed incorporated into the "common

use" provision it does not follow that ordinary negligence of a type reasonably to be contemplated is

such "uncommon use" as to avoid the positive command of the statute to erect poles "not in a

manner to be dangerous to persons." There is nothing in this statute which permits a construction

that those erecting poles may be oblivious to incidents of ordinary negligence.

¶40. While the Vines opinion placed emphasis on the term "common use" when quoting the statutes

in question, there is no other indication that the court there construed "common" to mean "proper" as

a matter of statutory interpretation. What the court did rely upon were previous decisions, one of

which predated the statute, announcing a public policy concern in the application of tort law

principles in these circumstances. Vines, 241 Miss. at 127, 129 So. 2d at 398. MP&L continues to

press those same concerns here.

¶41. Succinctly stated, that public policy concern is that it is of immense benefit to the public

generally that public utilities be allowed to use public rights-of-way for the delivery of the benefits of

those utilities. It follows, the argument goes, that a different standard for negligence or that a specific

standard of care for conformity with the general standard of care applies. See Coweta County v.

Adams, 473 S. E. 2d 558, 562 (Ga. Ct. App. 1996) (Smith, J., dissenting from majority holding

applying an ordinary standard of care and urging a different standard for utilities based on public

policy); McMillan v. Michigan State Highway Comm'n, 393 N.W. 2d 332, 342-344 (Mich. 1986)

(Riley, J., dissenting from Michigan Supreme Court holding overruling its previous holdings

precluding liability to passengers in vehicles which leave the traveled portion of the road. Justice

Riley would have continued to adhere to the prior cases as expressive of "overriding considerations

of public policy" which militate "in favor of uniformity concerning the specific standard of conduct to

which a utility company must conform for purposes of the common law of negligence, with respect

to the placement of utility poles in or near public highways.")

¶42. In Gulfport & Mississippi Coast Traction Co. v. Manuel, 123 Miss. 266, 278, 85 So. 308, 309

(1920), which was quoted and relied upon in Vines, this Court alluded to the public policy of

allowing public uses of right-of-way other than travel. The legislature, our premier expositor of

public policy, later expressed itself by the statutes allowing both electrical and natural gas utilities use

of public rights of way. See Vines, 241 Miss. at 125-126, 129 So. 2d at 397-98. It is those statutes

which we now construe.
¶43. There is no compelling reason why the statutes providing for the use by natural gas companies

should be given a different construction than those governing electric utility use. As for natural gas

utilities, this Court has expressly held that a utility is "not relieved of liability for resulting injuries

because the obstruction is outside the traveled way." United Gas Corp. v. Parker, 252 Miss. 486,

492, 174 So. 2d 370, 372 (1965). Neither is a utility relieved of liability because the driver of the

vehicle colliding with the offending structure may have been negligent. United Gas Pipe Line Co. v.

Jones, 236 Miss. 471, 499-500, 111 So. 2d 240, 250-51 (1959). The Jones Court distinguished the

cases relied upon in Vines and the Parker Court distinguished those cases and Vines with the

observation that they involved poles "'which could readily be seen from a distance by motorists

approaching from either direction along the highway.'" Parker, 252 Miss. at 493-494, 174 So. 2d at

373 (quoting Jones, 236 Miss. at 499, 111 So. 2d at 251). This ground for distinguishing those cases

appears to be an application of the "open and obvious" bar to recovery. If so, it must give way to our

present jurisprudence incorporating that defense into our comparative fault doctrine. See Tharp v.

Bunge Corp., 641 So. 2d 20 (Miss. 1994).

¶44. Today we adopt a standard which requires those who place structures in rights-of-way pursuant

to the statute to exercise reasonable care under the circumstances for the safety of those making

common use of the right-of-way. It shall not be a bar to liability that contact with the structure occurs

only after the driver, through misfortune or ordinary negligence, has left the main traveled portion of

the right of way. In determining whether the placement of a pole may be considered unreasonably

dangerous such that liability may follow, the trial court should consider such factors as the structure's

proximity to the roadway, the configuration of the roadway, whether the utility had notice of

previous accidents of sufficient similarity to give reasonable notice of the danger, and whether there

are feasible alternative locations for the structure which are less dangerous. See McMillan, 393 N.

W.2d at 339; Scheel v. Tremblay, 312 A.2d 45, 46 (Pa. Super. Ct. 1973).

¶45. Applying this standard to the case at bar, the conflicting evidence presented in this case created

issues to be resolved by the jury: whether this danger was foreseeable given the location of the pole,

the curvature and condition of the road, and the prior accident; whether Tackett's negligence was the

sole proximate cause of Kristen's injuries; and whether it was practical for the utility company to

eliminate the risk of harm by placing the pole in a different location. Taking the evidence in a light

most favorable to the non-movant, MP&L's motion for judgment notwithstanding the verdict was

properly denied by the trial court. For the same reasons, Jury Instruction P-4 was properly granted

and Jury Instructions MD-15 and MD-12 were properly denied.

IV.

¶46. MP&L claims that no jury issue under general principles of nuisance law was made in this case,

and therefore the trial court erred when it granted Jury Instruction P-6. That instruction states in

pertinent part:

If you find from a preponderance of the evidence in this case that:

1. Mississippi Power and Light Company failed to construct and maintain its poles and lines

involved in this case in a manner so as to reduce hazards to life as far as practicable; and

2. Its said poles and lines endangered the safety of travelers using Money Road
then I instruct you that Mississippi Power and Light Company's construction and maintenance

of its poles and lines within the right-of-way of Money Road at the location where the

occurrence in this case took place constituted a public nuisance. . . .

MP&L essentially reiterates its arguments under the first assignment, claiming the above jury

instruction should not have been granted.

¶47. The following language was quoted with approval in McKay v. Boyd Const. Co., Inc., 571 So.

2d 916 (Miss. 1990):

There is a general agreement upon the proposition that any permanent, fixed, or stationary

object or impediment, as distinguished from a mere temporary obstruction incidental to a lawful

use of the way, which unreasonably and unnecessarily interferes with public travel, or which

endangers the safety of travelers, constitutes a public nuisance per se. . . . It follows from the

foregoing statements that an obstruction may be a nuisance although it occupies only a part of

the way and sufficient space still remains to accommodate public travel, or although it is outside

the traveled or worked part of the way, or even though it is in fact a thing of public convenience

or benefit.

A necessary corollary of the foregoing statement of general rules is that an obstruction made

in the proper exercise of a proprietary right or pursuant to due public authorization, and

maintained in a proper condition, is not regarded as a nuisance. However, one invoking the

protection of such authorization must show that he acted strictly within the authority

conferred, and where an authorization to obstruct the public way is exercised in an improper

manner, the obstruction becomes a nuisance of a kind which arises out of negligence.

McKay, 571 So. 2d at 921-22 (quoting 39 Am. Jur. 2d Highway, Streets and Bridges § 274 (1968)

(emphasis added).

¶48. Because there was evidence adduced which could have been found by the jury to prove that

MP&L failed to properly exercise its right to construct the power pole in question and maintain the

power pole in a proper condition, pursuant to the authority of the NESC and Miss. Code Ann. § 11-

27-43, the jury could have concluded that the power pole constituted a public nuisance arising out of

negligence, thereby rendering MP&L liable for damages. Therefore, the trial court did not err in

granting Jury Instruction P-6.

V.

¶49. MP&L next contends that the circuit court erred in excluding evidence of drinking by the driver

involved in the accident and in failing to grant MP&L's alternative motion for a new trial. This

assignment calls into question the trial court's determination to grant Lumpkin's motion in limine to

exclude any mention of Tackett's consumption of alcohol prior to the accident. Tackett admitted to

drinking four or five beers on the night of November 23, 1989, from approximately 8:30 or 9:00

p.m., until approximately 10:30 p.m., and to being "tight" prior to the wreck. He stated, however,

that he did not think his ability to drive had been impaired. Tackett also conceded that he was

negligent in driving over the speed limit and failing to negotiate the curve, but maintained that his

negligence was not the proximate cause of the injuries sustained by Kristen.
¶50. The court ruled that the issue of Tackett's negligence, having been admitted in his brief in

opposition to MP&L's summary judgment motion, was no longer before the court and that any

mention of his consumption of alcohol would be unduly prejudicial. The court also had difficulty

finding relevance in Tackett's admission that he was "tight" when the accident occurred, stating, "I

guess I'm having problems knowing what tight means." The court determined that the word "tight"

was very nebulous. Defense counsel agreed that "tight" was a nebulous word, but that since Tackett

selected the word in a deposition to describe his condition, MP&L argued that it was entitled to

explore it to the extent the experts thought it would be relevant to the occurrence of this type of

accident.

¶51. Tackett, in his deposition, was asked whether or not he was tight, to which he replied, "I would

say tight; wasn't drunk." Tackett further stated that he "knew what he was doing," but admitted that

the alcohol affected him "[a] little." The court stated the following reasons for granting Lumpkin's

motion:

The Court is persuaded that the information relative to consumption of alcohol would be highly

prejudicial and its relevance, inasmuch as the Defendant, Mississippi Power & Light Company

contends that whether or not drivers of vehicles in this curve had been drinking, that vehicles

leave the road in various directions in that curve, so that the Court is persuaded that the defense

of MP&L is preserved although any mention of Defendant Tackett's consumption of alcohol is

hereby excluded. The Court is persuaded that the defense of MP&L remains available to them

without the admission of evidence which would clearly be highly prejudicial. So for those

reasons the motion to exclude testimony in that regard is granted.

Although the foregoing statement from the trial judge, taken by itself, is somewhat confusing, an

examination of earlier comments by the judge clarifies that the court was not persuaded that the

evidence of Tackett's consumption of alcohol was significantly relevant to the issues or MP&L's case.

The court had earlier commented: "[w]hat I hear [defense counsel] telling me is that people run all

over the place whether or not they've been drinking, which seems to me to undercut your argument

that this variable is so essential to your position--what you're telling me is it doesn't matter. They

were all over the place, drinking or not." When the court's comments on this issue are taken as a

whole, it is clear that the ruling was based on the conclusion that the relevance of the evidence of

Tackett's drinking, if any, was substantially outweighed by the prejudice that would result from such

evidence.

¶52. MP&L also argues that the jury was entitled to hear evidence that Tackett had been drinking

because it was clearly relevant to a determination of the degree of Tackett's negligence, that is,

whether he was the sole proximate cause or a contributing proximate cause, and what apportionment

of fault his negligence deserves. It also asserts that this evidence was necessary to allow the jury to

determine the degree of Kristen's negligence, if any, in riding with Tackett under circumstances from

which the jury could infer that she was aware of his intoxication. We agree.

¶53. While we applaud the care taken by the court to preclude issues which are more prejudicial than

probative, that care was misapplied in this case. We so conclude primarily because any negligence on

the part of Kristen in choosing to ride with Tackett while he was driving under the influence of

alcohol must be assessed by the jury. Additionally, because the foreseeability of an accident such as
this bears upon the issue of MP&L's negligence, if any, Tackett's condition may be instructive with

regard to a jury assessment of the condition of the road in that location and the role that it played in

the accident. While it is clear that foreseeability is to be determined by reference to what might

probably happen rather than what did in fact happen, what actually happened cannot be erased from

the mind of the jury in making that assessment. It is important that it know a circumstance as relevant

as this. Finally, Tackett's state of sobriety may also have an impact upon the jury's assessment of his

credibility in relating the events which occurred that night.

¶54. Of course, whether or not evidence is admissible for other purposes, the trial court is required to

balance the potential for prejudice against the probative value of the evidence under Rule 403. See,

e.g., Watts v. State, 635 So. 2d 1364, 1368 (Miss. 1994) ("[t]o be sure, evidence admissible under

Rule 404(b) is also subject to the prejudice test of Rule 403") (quoting Jenkins v. State, 507 So. 2d

89, 93 (Miss. 1987)); Ellis v. State, 661 So. 2d 177, 184 (Miss. 1995) (trial judge ruled that

defendant's testimony would not come under Rule 404(b), but properly proceeded to conduct a Rule

403 balancing test).

¶55. It is important for the courts to remember, however, that potential prejudice is not equally

weighted with probative value under this test. In Foster v. State, 508 So. 2d 1111 (Miss. 1987), this

Court held:

[A] trial court presented with a Rule 403 objection to relevant evidence must engage in a

balancing process. The more probative the evidence is, the less likely it is that a 403 factor will

be of sufficient consequence to substantially outweigh the probative value. . . .

If one or more of the 403 considerations slightly outweigh probative value, the evidence still

must be admitted. To tip the scale is not enough. The 403 factors must, in the language of the

rule, "substantially outweigh" probative value before the evidence may be excluded.

Foster, 508 So. 2d at 1117 (emphasis in original). We note that where the trial court makes specific

findings on the record concerning its determinations under Rule 403, proper review is facilitated. See,

e.g., Ellis, 661 So. 2d at 184.

¶56. In the present case, the trial court conducted no on-the-record balancing. We nevertheless

conclude that it was error to exclude evidence of Tackett's drinking. This is a close case as to the

issue of liability. The error, especially when combined with the error in excluding expert testimony to

be discussed below, mandates reversal.

VI.

¶57. MP&L next contends that the circuit court erred in excluding testimony by its expert witness,

Bob Marsh, on issues of foreseeability, the variables involved in utility pole placement, and placement

of the pole at the location recommended by the plaintiff's experts.

¶58. MP&L tendered, and the trial court accepted, Bob Marsh as an expert in the field of electrical

engineering. Marsh generally testified that the power line in question, in his opinion, met the

requirements of the NESC. However, when MP&L asked Marsh the following question, Lumpkin's

counsel objected:
Q. Do you have an opinion as to whether or not prior to November 23rd, 1989, it was

reasonably--from an engineering standpoint, it was reasonably foreseeable that an out-ofcontrol vehicle would strike this pole?

MR. LISTON: We object, Your Honor. That's not one of the opinions that this witness was

said to have in the discovery.

The court sustained Lumpkin's objection and MP&L made its proffer. During the proffer, MP&L

attempted to make a record of what transpired at Marsh's deposition in order to show that Lumpkin's

counsel was aware he would testify regarding the foreseeability issue. Lumpkin's counsel argued the

following:

For the record, his anticipation is correct. I object and I would in the proffer like to state this

into the record. The deposition that Mr. Caraway is now trying to get in to satisfy discovery

was taken on November the 12th, 1990. I don't have the exact date, but in 1992, was when they

[MP&L] said that Mr. Bob Marsh would be designated as a Rule 26-B-4-A expert which, of

course, is subsequent to the time this deposition was taken. And that answer does not include

any opinions on foreseeability or whether the pole should have been located in another position.

With regard to what transpired at Marsh's deposition, counsel for Lumpkin stated: "[m]ay it please

the court, we'll admit that I questioned him. I asked him every question I could think of, but it's not

relevant to this and I object to it." MP&L argues that Marsh was deposed and asked questions

concerning the foreseeability of this accident; therefore, even though the answer to the interrogatory

was never supplemented to state that Marsh would testify on the foreseeability issue, the trial court

committed reversible error in excluding Marsh's testimony on this subject.

¶59. Pursuant to Miss. R. Civ. P. 33, the plaintiffs propounded a set of interrogatories to MP&L.

Included was an interrogatory seeking discovery of the information permitted under Miss. R. Civ. P.

26(b)(4)(A)(i). In regard to Marsh, MP&L responded in writing on September 14, 1990, as follows:

(c) These witnesses are expected to testify that in their opinion the pole and line in question was

constructed and maintained in accordance with the National Electric Safety Code and generally

accepted industry standards.

(d) Their opinion is based on their education, experience, knowledge of and examination of the

line in question.

¶60. We observed in McCollum v. Franklin, 608 So. 2d 692 (Miss. 1992) that excluding evidence

for a transgression in discovery is an extreme measure. Before imposing such a sanction a trial court

should consider the explanation for the transgression, the importance of the testimony, the need for

time to prepare to meet the testimony and the possibility of a continuance. Murphy v. Magnolia

Elec. Power Ass'n, 639 F. 2d 232, 235 (5th Cir. 1981). The first consideration involves a

determination whether the failure was deliberate, seriously negligent or an excusable oversight. The

second consideration involves an assessment of harm to the proponent of the testimony. The third

and fourth considerations involve an assessment of the prejudice to the opponent of the evidence, the

possibility of alternatives to cure that harm and the effect on the orderly proceedings of the court.
¶61. Clearly there is no deliberate failure to grant discovery here. Marsh was named as an expert. He

was offered by MP&L to respond to the issue whether the accident was reasonably foreseeable as a

Rule 30(b)(6) witness and deposed as such. Answers to interrogatories indicated that he would state

an opinion that the placement of the pole complied with NESC standards. That testimony necessarily

includes an assessment as to the foreseeability of accidents such as this. Foreseeability was clearly the

main issue in the case about which Lumpkin was prepared to and did offer expert testimony. There

was no time needed for further preparation. Lumpkin does not even claim actual surprise or prejudice

if this testimony was admitted. Under these circumstances it is a clear abuse of discretion to exclude

the testimony. This error requires reversal.

VII.

¶62. We need not discuss the balance of the issues raised by MP&L because they are not likely to

recur. It should suffice to say that we are troubled by the trial court's need to reform an ambiguous

verdict and the manner of that reform. This situation should be corrected by the use of a less

ambiguous special instruction form.

¶63. For the foregoing reasons this case is reversed and the matter remanded to the circuit court for

further proceedings consistent with this opinion.

¶64. REVERSED AND REMANDED.

SULLIVAN AND PITTMAN, P.JJ., CONCUR. McRAE, J., CONCURS IN PART AND

DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. SMITH, J., CONCURS IN

PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY

PRATHER, C.J., AND ROBERTS, J. MILLS AND WALLER, JJ., NOT PARTICIPATING.

McRAE, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶65. I agree with the majority's decision to overturn Vines v. Southwestern Mississippi Elec. Power

Ass'n, 241 Miss. 120, 129 So. 2d 396 (Miss. 1961). The shoulders of a highway are for the use of

traffic in cases of emergency, and when circumstances indicate their usefulness, they should be kept

free of unnecessary obstructions, like utility poles, which are likely to cause injury to persons using

the highway. However, I disagree with the majority's decision to remand this case based on the

exclusion of evidence. This case was about whether there was joint liability or a single tortfeasor. The

operative question for the jury was whether MP & L was negligent, regardless of the percentage, and

the jury answered in the affirmative. Kristen Black was a passenger and was not negligent at all.

Accordingly, I would affirm the verdict.

¶66. Evidence presented at trial established that whether drivers of vehicles in the particular curve on

Money Road had been drinking, vehicles have left and will continue to leave that road in various

directions at the curve. The evidence of the prior accidents at this location in the years leading up to
this incident sufficiently established that MP & L had constructive knowledge of the defective

condition and that MP & L had an obligation to discover the defect and re-position the pole to

protect the public from harm. MP & L's failure to take any of these measures constitutes fault which

contributed to this accident. I agree with the trial judge's conclusion that the location of the electricity

pole in the curve at Money Road created an unreasonable risk of harm. Both Spears v. Mississippi

Power & Light Co., Inc., 562 So. 2d 107 (Miss. 1990) and Miss. Code Ann. § 11-27-43 mandate

that a utility company must not erect a pole if such an act will be dangerous to persons or property.

As a matter of law, then, MP & L was negligent.

¶67. The question in this appeal is not the negligence of Tackett; it is whether or not the power

company was negligent in placing the pole at a place where danger was foreseeable. MP & L's

responsibility for the judgment returned by the jury regarding this act is not diminished, whether the

driver of the car was intoxicated and hit the pole, whether the driver carelessly ran off the road and

hit the pole, or whether conditions at the curve caused the driver to hit the pole. MP & L placed that

pole right in the crest of a dangerous curve, knowing of the dangers that could occur there and after

having second and third "bites at the apple." Further, MP & L was aware of incidents prior to the

instant accident in which that pole had been hit. Nonetheless, MP & L did nothing to alleviate the

clearly foreseeable risk of danger.

¶68. Whether MP & L was 1% negligent or 99% negligent, it owed the appellees the entire amount

of the jury verdict, pursuant to Mississippi's joint and several liability scheme as it existed at the time.

With joint and severable liability, a jury is not asked to apportion the negligence or the award

between two defendants. A plaintiff can collect an entire award from either defendant or part of the

award from both defendants. In this case, the jury clearly found MP & L to be negligent. The alleged

influence of Tackett's drinking would not change the fact that MP & L negligently placed the pole in

a dangerous position and continued to maintain it there after being put on notice of the dangerous

situation. In the instant case, Lumpkin and Black may enforce their judgments in full against MP & L

as a solitary obligor. If it feels compelled to do so, MP & L may then assert its own rights of

contribution and/or indemnity against Tackett.

¶69. Accordingly, the jury verdict should be affirmed.

SMITH, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶70. I agree with the majority that the trial court erred by failing to admit evidence of Tackett's

intoxication and in failing to admit the testimony of Mississippi Power and Light's expert, Marsh. I

accordingly agree that this case must be reversed. However, I strongly disagree with the majority's

attempt at overruling of Vines v. Southwestern Miss. Elec. Power Ass'n, 241 Miss. 120, 129 So. 2d

396 (1961), as well as other issues raised by Mississippi Power and Light Company (MP&L) which,

in my view, warrant reversal of this case. I would reverse and render this case based on Vines.

¶71. In attempting to overrule Vines, according to the majority, a properly instructed jury may find

that MP&L negligently created a hazardous condition by placing its utility pole precisely in a position

21' 6" off the traveled portion of Money Road. This position would allow a jury to find that such

placement constituted a dangerous obstacle to drivers normally utilizing the roadway. The majority

thus adheres to the premise that it was "reasonably foreseeable" by MP&L that reckless, "tight"

drivers, who failed to maintain a proper lookout, failed to maintain proper control over their vehicles,
while driving at an excessive rate of speed, would ignore highway warning signs and most likely run

off the roadway in a known dangerous 60 to 90 degree curve, leave 80 feet of tire skid marks on the

pavement, fly airborne 45 feet, striking MP&L's improperly placed pole with such force that it would

split into three separate pieces and then the vehicle would slide an additional 64 feet to its final

resting place in a farmer's muddy cotton field.

¶72. Adopting Lumpkin's experts' opinion, the majority maintains that a jury should determine

whether MP&L should have placed the pole in question at a different and safer location. However,

the ultimate question then becomes: How can a company like MP&L ever predict where the driving

patterns of this type of driver will lead when deciding upon a safe location in which to place its utility

poles? The answer is no company would ever make such a prediction. Such is the folly of suggesting

overruling Vines, which in my view, is good law.

¶73. The story does not end there. The Mustang automobile driven by Randy Tackett was occupied

by teenagers. Tackett admittedly consumed four or five beers and was feeling "tight." Tackett failed

to heed the sharp curve highway warning sign as well as the warnings of the other teens in his vehicle

concerning the upcoming bad curve. Miraculously, no one was injured in the above described

scenario. Immediately after the wreck, Tackett was busy gathering up and disposing of the evidence,

i.e., throwing the remaining beer and empty beer cans in to a nearby creek. Fifteen year old Kristen

Black exited the car and started towards the highway despite a warning from Heather Barry, who

stated "Kristen, don't go up there. There's wires up there." Kristen told Heather that "she was just

going to go up under them." Kristen continued to walk towards the highway and made contact with

one of the energized downed wires and was severely injured. This case could easily be referred to as

one of "cause and effect, chain of ev ents," which was significantly contributed to by Tackett's

extremely negligent conduct. However, the jury, without benefit of Bob Marsh's testimony and

further restricted by limited knowledge of the complete facts, found no negligence whatsoever, by

Tackett.

¶74. And the story continues. Extensive discovery was conducted by all parties. MP&L responded to

Lumpkin's Interrogatory No. 3 and listed Bob Marsh as an expert witness, who was expected to

testify inter alia that the utility pole and power line were both constructed and maintained in

accordance with generally accepted industry standards and in accordance with the National Electric

Safety Code. In addition, Marsh was questioned extensively by plaintiff's counsel during a Rule 30(b)

(6) deposition taken on November 12,1990, concerning the above related matters, issues of utility

pole location, alternate pole locations, and foreseeability. This deposition was conducted fourteen

months prior to trial. Lumpkin was completely informed concerning all factors of Marsh's upcoming

testimony at trial.

¶75. At trial, Lumpkin offered expert witnesses who were allowed to testify that MP&L should have

placed its utility pole at a different and safer location. Lumpkin's experts testified that a safer location

for the utility pole would be to place it in front of the farmer's liquid ammonia nitrate tank in the

cotton field, and this position was the only alternative placement for the pole that was ever suggested

by the plaintiff's experts. A more dangerous placement could not possibly have been selected by the

plaintiff's experts. Placement of the pole in front of a liquid ammonia nitrate tank, subjecting it to the

possibility of a vehicle containing gasoline running over the light pole, splintering the pole into three

pieces and bringing down the lines, then striking the ammonia tank, with the added possibility of a
spark from electrical lines, or alternatively, a fire from the vehicle's fuel line or gas tank, would set off

an explosion of astronomical proportions. Plus, such placement was not possible according to the

engineers.

¶76. However, the trial court excluded Marsh's relevant testimony on the issue of Tackett's driving

conduct, foreseeability and pole location when Lumpkin's counsel claimed that he was being

"ambushed " and surprised, because MP&L had not complied with Rule 26 (f)(1) and revealed in

interrogatories all this information that Marsh would testify to at trial. The purpose of discovery is to

eliminate trial by surprise and that discovery may be obtained by utilizing several different means.

Lumpkin's counsel had thoroughly questioned Marsh on all of these important issues at deposition

and could not possibly have been ambushed or surprised.

¶77. Thus, the expert testimony of the three plaintiff experts at trial went unrefuted on these critical

issues. The only evidence that the jury was allowed to consider was that the pole in question was

placed by MP&L in a location which constituted a hazardous placement. The plaintiff's expert

supported this claim by testifying that there had been other vehicles that had run off the road in the

curve and one vehicle had previously struck the guy wire on this pole.

¶78. Lumpkin's argument that the pole's placement constituted a hazard pales when compared to the

fact that over three million vehicles had passed by the pole and not a single vehicle had struck the

pole prior to this accident. This writer would assert that this fact alone absolutely supports the

position of MP&L that the pole was in as safe a location as could possibly be determined. A reverse

question could be posed back to the majority: At what other location could MP&L have placed the

utility pole that would have insured that it would not be struck by an out-of-control, speeding,

reckless or drunk driver? Common sense dictates the existing location was as reasonably safe as any

other potential site. The lack of common sense suggestions of pole placement by Lumpkin's experts

as adopted by the majority, warrants the re-naming of this issue as, "The pole that should not have

been coming after Tackett's car."

¶79. Nevertheless, logic and fairness notwithstanding, the jury was precluded by the trial judge from

hearing any evidence from Marsh concerning his opinion that it was an absolute impossibility to

design a utility pole distribution system when required to consider drunk, reckless drivers and other

variable factors being figured into an equation when attempting to predict where an out-of-control

driver might run off a road. Obviously, at the time of trial, Lumpkin's counsel had been fully aware

for fourteen (l4) months of all matters that Marsh would testify to at trial. Accordingly, Lumpkin's

counsel should not be allowed to be successful in his plea of surprise, ambush or prejudice. There is a

glaring absence of any of these three factors affecting Lumpkin. Contrarily, MP&L was severely

prejudiced by the trial court's denial of Marsh's testimony.

¶80. But, the saga continues with the trial court's precluding evidence of Tackett's consumption of

alcohol. While I agree with the majority on this issue, I write further to emphasize this error.

Plaintiff's counsel filed a motion in limine to exclude any mention of Tackett's consumption of

alcohol prior to the accident. The trial judge reasoned that since Tackett admitted negligence in that

Jury Instruction P-7, which stated that Tackett admitted a violation of his [duty to exercise

reasonable care in the operation of his automobile] in that he failed to maintain proper control,

allowing the jury to consider any evidence of alcohol consumption would create unfair prejudice
against Tackett, substantially outweighing any probative value. The jury was not told the entire story

of Tackett's negligence, which included: failure to maintain a proper lookout, failure to observe

highway warning signs regarding the bad curve, failure to heed the warnings of fellow occupants of

the vehicle regarding the bad curve, previous experience driving in that area as he had proceeded

through the curve earlier that same evening, exceeding the 55 miles per hour speed limit, locking his

brakes up, cutting his steering wheel. And perhaps the most relevant of all, the jury did not hear that

he admitted consuming four to five beers and was "tight," and maybe affected "[a] little," but not

drunk.

¶81. The trial court had difficulty finding relevance in Tackett's admission that he was "tight" when

the accident occurred. Judge Graves stated, "I guess I'm having problems knowing what tight

means." He determined the word "tight" was very nebulous. In his deposition, it was Tackett who

selected the word by stating, "I would say tight; wasn't drunk." However, Tackett then admitted that

the alcohol affected him "[a] little." Tackett appears to be attempting to "backstroke" out of a trap

that he himself set. The word "tight" is a common, everyday, garden variety word, used frequently by

the public at large to express an opinion that a person is intoxicated or under the influence of alcohol.

More importantly, in the case sub judice, it was Tackett's chosen word to describe himself on the

occasion of the accident. Admittedly, the word "tight" has several different meanings, one of which

is, " full of liquor, intoxicated, drunken." Websters Third New Int'l Dictionary 2392 (1971). The

word may have been nebulous to the trial judge, but it's not to Mr. Webster nor this writer because of

the context within which it was used by Tackett in his response at deposition. The jurors, had they

been allowed to hear the testimony concerning Tackett's use of the word "tight," in its entire context,

could have reasoned that Tackett was intoxicated, thus more negligent than admitted to on the

occasion of the accident. Had jurors been made fully aware of this factor, they could have determined

that Tackett's intoxication was a relevant and material factor in causing the accident in question or at

the very least that such factor may have added to the issue of contributory negligence of Kristen

Black. This one factor alone overwhelmingly affected the outcome of this verdict. The trial court

totally ignored that evidence of Tackett's being "tight" also went to foreseeability, to the degree of

Tackett's negligence and proximate cause, and to Kristen Black's contributory negligence in

knowingly riding with Tackett, who had consumed alcohol. The jury was entitled to decide this issue

for themselves.

¶82. The finale of this story is the trial judge's interrogation of the jurors regarding their ambiguous

verdict, conducted in open court in the presence of the parties and attorneys and without benefit of

further instructions on the law. The proper course of action based on precedential case law is for the

trial court to prepare additional instructions if necessary or advise that the jury has already received

adequate instructions and send the jury back to continue its deliberations. The better course would

have been for the judge to send the jury back to deliberate with a clearer question.

¶83. Having been now fully informed on the factual events and rulings of the trial judge, it should not

shock the reader that the end result of this story was a jury verdict for Black, but finding MP&L 50%

comparatively negligent in its utility pole placement, Black 50% contributorily negligent and Tackett

without fault in causing the accident.

¶84. Considering Black's contributory negligence, the trial judge's rulings which unfairly hampered

MP&L's defense, and the withholding from the jury of significant, relevant facts concerning Tackett's
negligence, the verdict was astounding. The resulting verdict in favor of Black and against MP&L in

the amount of $750,000, with Tackett totally absolved of any negligence was unfair, fundamentally

offensive, and obviously the result of prejudice or bias by the less than fully informed jury.

Nevertheless, this unjust verdict against only MP&L without including Tackett was easily

predictable, considering the trial judge's rulings and the mountain of critical and relevant evidence

that the jury was not allowed to hear.

¶85. An analysis of each individual issue complained of by MP&L, examination and application of

our appropriate case law, leads this writer to the conclusion that the majority is mistaken. This case

should be reversed and rendered in favor of MP&L.

¶86. Lumpkin asks this Court to overrule Vines v. Southwestern Miss. Elec. Power Ass'n, 241

Miss. 120, 129 So. 2d 396 (1961) and the legion of cases forming the basis of the law dating back

seventy-eight years to Gulfport & Miss. Coast Traction Co. v. Manuel, 123 Miss. 266, 85 So. 308

(1920) and the majority attempts to do so.

¶87. The facts in Vines are practically identical to the case at bar. Vines' accident occurred at 11:00

p.m., the same time as this accident occurred. In Vines, the driver admitted drinking two bottles of

beer. Here Tackett admitted consuming either four or five beers. There were four occupants in the

vehicle in Vines and five in this case. The driver in Vines was traveling 35 to 40 miles per hour in a

curve to the left. Here Tackett admitted to exceeding 55 miles per hour in a sharp 60 to 90 degree

curve to the left. The pole struck by the driver in Vines was located only three and one-half feet from

the traveled portion of the roadway and had been struck twice before. Here the pole was located

twenty-one feet and six inches from the roadway and had never been struck before, although the guy

wire had been previously struck. In Vines, the driver left the traveled roadway and ran 150 feet down

a ditch. Here, Tackett traveled 189 feet out of control, 45 feet of which was airborne, most likely the

results of his greater speed and the four foot elevated roadbed. Both drivers struck utility poles

breaking them and bringing down the power lines. In both cases, passengers were injured by walking

into downed power lines. In Vines there was even evidence of a failed power steering system, yet no

such vehicle mechanical failure exists in this case.

¶88. Readily obvious is that the actions of Tackett were much more egregious than those of the

driver in Vines. What is also recognizable is that Tackett was not making an ordinary use of the

roadway nor exercising reasonable care and caution. This Court, in Vines, stated:

In the case at bar the pole was not within that portion of the right-of-way designed for public

travel and no one making the ordinary use of the road and exercising reasonable care and

caution would travel where the pole was located.

Vines, 241 Miss. at 128,129 So.2d at 399. The Court further noted that the driver was not making

ordinary use of the roadway and cited a Tennessee Court of Appeals case which stated:

The general rule established by the modern authorities is that a public utility company lawfully

maintaining a pole in or near a public highway is not liable for the damage to a person or

property resulting from a vehicle striking such pole, unless it is erected on the traveled portion

of the highway or in such close proximity thereto as to constitute an obstruction dangerous to

anyone properly using the highway, and the location of the pole is the proximate cause of the
collision.

Vines, 241 Miss. at 128, 129 So. 2d at 399 (quoting Clayforn v. Tenn. Elec. Power Co., 101 S.W.

2d 492, 497). The majority apparently fails to observe that in this case, as was the situation in Vines,

it is the driver's overall conduct amounting to multiple improper and negligent actions which

constitute improper use of the highway. This Court granted a directed verdict in Vines. MP&L

should have also been granted a directed verdict in this case.

¶89. The majority also attempts to utilize this Court's decision in Spears v. Miss. Power & Light

Co., Inc., 562 So. 2d 107 (Miss. 1990) as support for its position. Spears is distinguishable for

several reasons. First, the Spears decision did not even involve the location of a utility pole placed

along a public highway. The facts in Spears concerned an MP&L easement and right-of-way across a

private business's parking lot and involved a driver invitee, who while concentrating on finding a

parking place on a dark night, simply did not see the utility pole during a heavy rainstorm and struck

the unmarked pole. Thus, the issue was totally different in that it dealt with the determination of what

standard of care was owed to an invitee of the property owner who was injured when he collided

with a dark, unmarked power pole owned by MP&L and which occupied a portion of the premises

where traffic normally flowed. Even the majority admits the issue in Spears was different but,

nonetheless the majority plows ahead citing the Spears questions: Whether the pole should have had

lighting? Should the pole have been marked? Should the owner or MP&L have installed guard rails

around the pole? Is the majority suggesting lighting and guard rails on every utility pole in this state?

Whether the injury was foreseeable as to MP&L? Was there an obligation of the defendant to

anticipate an injury? It is more than noteworthy that the Spears Court apparently did not find the

facts sufficiently analogous enough to Vines to even mention that opinion, much less attempt to

overrule it.

¶90. Next, the majority refers to §11-27-43 which states that power poles must be erected in

accordance with the provisions of the NESC. The provisions state that utility poles shall be installed

and maintained so as to reduce hazards to life as far as practical. Using the majority's view, it is

absolutely reasonable to require that MP&L, on its miles and miles of power lines located along

highway right-of-ways, mark all of the poles, install lights and guard rails to avoid creating an

unreasonable risk or hazard to drivers normally using the roadway. The majority fails to note that

there is a much greater likelihood of a vehicle driven by an invitee striking an unmarked, unlighted,

unguarded utility pole in the middle of a business's private parking lot than it would be to foresee that

an admittedly "tight" teenager, who had consumed four or five beers, exceeded 55 mph, failed to

maintain proper control of his vehicle, failed to maintain a proper lookout, failed to heed a warning

sign of a bad curve, failed to heed warnings from fellow occupants, would go airborne and strike a

utility pole located 21 feet 6 inches off the highway.

¶91. Common sense dictates the necessity of public utilities utilizing highway right-of-ways to enable

electricity to be delivered to the thousands of citizens of this State. The system denotes a dual use of

one existing right-of-way, thereby decreasing the overall costs of unnecessary re-routing of electrical

distribution systems. Both the Legislature and this Court have recognized the prevailing public

interest served by this system. This Court, in Vines noted with approval "the public interest served in

the use of the streets for the erection of utility poles." Vines 241 Miss. at 127, 129 So. 2d at 398.

The Vines Court further stated:
The legislature has recognized this public interest in connection with the use of highways in

rural areas by enactment of the statutes cited above.

Id. Also, in City Council of Greenville v. Thomas, 241 Miss. at 633, 131 So. 2d 659 (1961), this

Court stated:

The declared policy of this State, as evidenced by such statutes [citations omitted] is to

encourage the development of the public utilities by affording them the right to place their lines

along the streets and highways.

Id. at 644, 131 So. 2d at 662.

¶92. However, this dissent recognizes what the majority apparently does not, that this dual system of

use of a highway right-of-way for highway purposes and electrical distribution poles may co-exist

without danger or interference to the other. And yet, by the same token, neither may utilize their

rights in a manner as to wantonly injure the other. This Court, in Mississippi Power & Light Co. v.

Dulaney, 239 Miss. 460, 123 So. 2d 845 (1960), stated:

The appellee had the right to such reasonable use of the streets for its poles and wires as the

conditions existing at the time in the community warranted. On the other hand, the appellant

had the reciprocal right to what was a reasonable use of the streets on his part. The rights of the

appellant and the appellee are mutual and reciprocal. Neither could so use his own rights as to

wantonly injure the other. These two correlative rights, if the law is obeyed, operate in perfect

harmony with each other. There are no interferences, and no vacancies in the sphere of their

harmonious movement.

Id. at 468-69, 123 So. 2d at 846(emphasis added)(quoting Temple v. McComb Elec. Light and

Power Co., 89 Miss.1, 42 So. 2d 874. A driver making normal use of the roadway is clearly one who

is obeying the law, exercising reasonable care and caution and traveling upon that portion of the

highway right-of-way designated for public travel. Contrarily, out-of-control drivers such as Tackett,

who are violating every conceivable rule of care, throwing caution to the wind, whereupon they fly

airborne 45 feet and strike a utility pole on the outer extreme edge of the right-of-way, as are this

case, are certainly not making normal use of the roadway. It is absurd to suggest that MP&L under

these circumstances has ignored foreseeability of an accident, and created an unreasonable risk of

harm, by placing its pole so as to wantonly injure Black. It was error to grant Instruction P-4 and

deny MD-15 and MD-12. A directed verdict for MP&L was proper and should have been granted by

the trial judge. On this issue alone, I would reverse and render for MP&L.

¶93. I also respectfully disagree with the majority concerning the granting of Instruction P-6, which

submitted the issue of public nuisance to the jury. The majority holds that the trial court properly

allowed the public nuisance instruction, citing as support, approved language in McKay v. Boyd

Const. Co., Inc., 571 So. 2d 916, 921-22 (Miss. 1990) wherein this Court stated:

There is a general agreement upon the proposition that any permanent, fixed or stationary

object or impediment, as distinguished from a mere temporary obstruction incidental to a lawful

use of the way, which unreasonably and unnecessarily interferes with public travel, or which

endangers the safety of travelers, constitutes a public nuisance per se. . . .
* * *

39 AM. JUR. 2d HIGHWAYS, STREETS, AND BRIDGES, § 274, pp. 661-62 (1968)

(emphasis added).

¶94. McKay cites United Gas Pipe Line Co. v. Jones, 236 Miss. 471, 111 So. 2d 240 (1959), which

was Lumpkin's sole authority for submitting the public nuisance theory to the jury. McKayand Jones

are factually distinguishable from the case at bar.

¶95. In McKay, two year old Timothy McKay was the sole survivor in a vehicle driven by his mother.

The driver strayed slightly to the left on U.S. Highway 49, a four-lane divided highway and struck

head-on the blunt edge of the concrete abutment of a bridge. The abutment was located 23 inches

from the traversed portion of the access road. Id. at 917-18. McKay filed suit against the contractor

of the bridge, Boyd Construction Company and the Mississippi State Highway Commission.

Summary judgment was granted to both defendants. The Jones decision was cited by the appellants

in Vines, and rejected by this Court which stated, "We do not think the Jones case is applicable."

Vines, 241 Miss. at 129, 129 So. 2d at 399. This dissent has already shown that Vines is virtually

identical to the facts in the case sub judice and the differences strongly favor MP&L. In Jones, the

facts revealed that a passenger was killed when the vehicle in which he was riding struck United Gas

Pipe Line's concrete marker. The vehicle, moments before impact had been traveling 90 mph, but due

to a plea by an occupant to slow down, the vehicle was traveling 55 to 60 mph as it entered the

curve. The highway right-of-way was 60 feet wide, the traveled portion of the roadway was 18 feet

wide and United's 2 1⁄2 foot high concrete marker was located only 3 to 3 1⁄2 feet from the black top

pavement. The marker was obscured from view by sedge grass.

¶96. The majority cannot seriously contend that the facts above mentioned are analogous to the case

sub judice. Even the Jones Court itself distinguished the pipeline marker in that case from electric

utility pole cases. Referring to the Manuel and Sellers cases, the Jones Court stated:

But the facts in each of those cases were entirely different from the facts shown by the record in

this case. Those cases involved injuries resulting from collisions with the poles of electric power

companies which could be readily seen from a distance by motorists approaching from ether

direction along the highway.

Jones, 236 Miss. at 499, 111 So. 2d at 251. Returning to the case at bar, Tackett's claim that "he

never saw MP&L's utility pole even as the car drove through it," is thinly disguised. The pole was 35

feet long, unobstructed and located down a 4 foot raised highway bed, 21 feet 6 inches from the

shoulder of the road and at the very outer limits of the highway right-of-way. Exhibit 26, a

photograph of the pole, clearly demonstrated these facts. Put very simple, this Court, in the case sub

judice is not confronted with a 2 and 1⁄2 foot high concrete marker, obscured by tall grass and located

a mere 3 feet from the shoulder of the road, as in Jones. Nor is this Court confronted with a portion

of a bridge located a mere 23 inches from the shoulder of the highway, as in McKay. This Court is

not even confronted with a utility pole being located 3 and 1⁄2 feet to 4 feet from the shoulder of the

roadway, as in Vines.

¶97. Vines, again should control where this Court, discussing the principle of liability of a public

utility for damage resulting from an automobile collusion with its utility pole, stated that there is no
liability, "unless it is erected on the traveled portion of the highway or in such close proximity thereto

as to constitute an obstruction dangerous to anyone properly using the highway, and the location of

the pole is the proximate cause of the collision." Vines, 241 Miss. at 128-29,129 So. 2d. at 399.

¶98. There are other factors in Vines along with that Court's language in addressing them which

further add strong support to MP&L's argument and this dissent. The power line from the broken

pole fell into the roadway. Vine's expert witness, as did the plaintiff's expert in this case, testified that

the poles and lines were not built and maintained according to the requirements of the National

Bureau of Standards. The Vines Court stated:

In our view of the expert's testimony, it is not shown thereby that there was a violation of these

rules. The testimony of this witness that the lines were dangerous does not make this a jury

case. Whether the particular facts made it a jury case is a question of law which cannot be

varied by an expert witness in a case of this kind.

Vines, 241 Miss. at 129-30, 129 So. 2d at 399. Also noteworthy in addressing the issue of the lines

falling into the roadway and the contention by Vine's expert that adding another pole would have

eliminated this hazard, the Vines Court stated:

We do not think the utility must guard against dangers resulting from vehicles leaving the

traveled portion of the highway and knocking down the power poles, as already stated.

Moreover, if the lines are knocked down, they must fall some place. If they had fallen on the

automobile, the danger may have been greater. The fact that they fell in the highway was not

the proximate cause of the death of Vines. The sole proximate cause was the manner in

which the automobile was driven.

Appellants showed that prior to the accident in question, a motorist had lost control of his

automobile and struck the same pole. They also offered to prove another person had struck the

pole some time before. We are of the opinion that the fact of prior accident does not change

what has been said. The fact remains that anyone striking the pole was not lawfully and

properly using the road. The evidence and the photographs clearly show that anyone

making the ordinary and proper use of the highway would not strike this pole.

Vines, 241 Miss. at 130, 129 So. 2d at 399-400 (emphasis added). Instruction P-6 was so vague and

general that the jury would have probably found against MP&L, no matter what set of facts was

presented. It was error to give such an instruction in view of Vines.

¶99. We now turn to an analysis of the trial court's failure to allow the jury to hear evidence of

Tackett's consumption of alcohol. While I agree with the majority on this issue, nevertheless, I write

further for clarification. Tackett admitted negligence, yet this does not warrant exclusion of evidence

under Rule 403. U.S. v. Lowe, 569 F. 2d 1113 (10th Cir. 1978). Rule 403, an extraordinary remedy,

should be used sparingly and only where a balancing test is conducted by the trial court to determine

whether the probative value is substantially outweighed by the danger of unfair prejudice. S.E.C. v.

Peters, 978 F.2d 1162,1171 (10th Cir. 1992)(citation omitted).

¶100. We note at the outset, that although the trial court ruled, it failed to conduct any balancing test.

Thus, there is no way for this Court to determine what factors, if any, were considered by the trial
court in arriving at its decision that the prejudicial effect of Tackett's alcohol consumption

substantially outweighed any probative value. The trial court does not have the prerogative of

determining whether or not to conduct a balancing test and then fail to state the reasons for his ruling

on the record. In Foster v. State, 508 So. 2d 1111 (Miss. 1987), this Court held:

Thus, a trial court presented with a Rule 403 objection to relevant evidence must engage in a

balancing process. The more probative the evidence is, the less likely it is that a 403 factor will

be of sufficient consequence to substantially outweigh the probative value. . . .

If one or more of the 403 considerations slightly outweigh probative value, the evidence still

must be admitted. To tip the scale is not enough. The 403 factors must, in the language of the

rule, "substantially outweigh" probative value before the evidence may be excluded.

Foster, 508 So. 2d at 1117 (emphasis added). In Watts v. State, 635 So. 2d 1364 (Miss. 1994), this

Court stated:

Even with a finding of admissibility under Rule 404(b), however, it remains clear that the

required balancing test of Rule 403 was never conducted.

Watts, 635 So. 2d. at 1368. More recently, in Ellis v. State, 661 So. 2d 177, 184 (Miss. 1995), this

Court reaffirmed the mandatory aspects of Rule 403 wherein the Court noted with approval the trial

court's specific findings under the Rule 403 balancing test on the record.

¶101. Commencing the specific analysis, we find three substantial reasons why Tackett's admissions

concerning alcohol use was admissible for the jury's consideration. First, Tackett's admission of

drinking and of being "tight" went to the issue of foreseeability. The denial of Marsh's testimony

prevented MP&L from presenting to the jury the issue of whether MP&L could reasonably be

expected to foresee in designing its electrical transmission system and determining the location of its

utility poles, that out-of-control, drinking drivers might leave the roadway and strike MP&L's poles.

Nor did the jury hear Marsh's opinion that such a distribution system could not be designed, given

such variables. Nor did the jury hear the plaintiff's expert witness, Hibbitt Neel's proffered testimony

on this issue. MP&L's counsel, referring to Tackett, asked Neel, "Does his having been drinking

along with other factors that you've mentioned make it harder to predict where his car would have

gone off the road?" Neel replied, "Yes."

¶102. Tackett's drinking, in addition to the stipulated negligence, went also to the degree of

negligence and to whether his negligence was the sole proximate cause of the accident. Miss. Code

Ann. § 85-5-7 (1991) allows for determination of percentage of fault in a civil case. The jury never

heard the complete truth concerning Tackett's negligence on the night of the accident. The only

negligence by Tackett that the jury was allowed to consider was Tackett's negligence in failure to

control his vehicle. The trial court erred in denying MP&L the opportunity to argue that its

negligence, if any, was certainly less than Tackett's. In Allen v. Blanks, 384 So. 2d 63 (Miss. 1980),

this Court stated:

It is a fact capable of judicial notice that consumption of even small quantities of alcohol may

significantly, albeit "imperceptibly," impair reaction time. Where split seconds are critical, even

a very slight impairment of reaction time may spell the difference between accident or no
accident, between proximately contributing negligence or the lack of it.

Allen, 384 So. 2d at 67. (emphasis added). The jury remained in the dark concerning this important

fact, and the jury did not know that Tackett violated the law in purchasing or possessing beer. Miss.

Code Ann. § 67-3-70 (1972). The denial of such evidence here is in marked contrast to the

allowance of evidence to the jury in Jones, "that the defendant B.J. Townsend, was negligent in

permitting his son, Paul B. Townsend, who was only 14 years of age, to operate his car on the

highway, . . . that the said Paul B. Townsend did not have a driver's license and could not get a

driver's license due to his age." Jones, 236 Miss. at 482, 111 So. 2d at 242. Returning to this case,

the jury, precluded from hearing all relevant evidence, was effectively prevented from fully assessing

Tackett's degree of negligence as to whether it was a contributing factor or sole proximate cause of

the injuries sustained by Black.

¶103. Finally, Tackett's consumption of alcohol was certainly relevant to Black's contributory

negligence. The jury determined that Black was 50% contributorily negligent by her actions in

ignoring warnings about the downed electrical wires, acknowledging the wires were there but,

nevertheless proceeding to walk up under them. Evidence of Black having knowingly continued to

ride in an automobile with Tackett, who had been drinking was permissible and relevant. This Court,

in Hill v. Dunaway, 487 So. 2d 807 (Miss. 1986), allowed and approved of a jury instruction on this

issue. The Hill Court stated:

The operative point, however, is that a party to an action is entitled to have the jury instructed

regarding a genuine issue of material fact, viz the Plaintiff's contributory negligence vel non, so

long as there is credible evidence in the record which would support the instruction.

Id. at 809. See also, Jones v. Pacific Gas & Elec. Co., 285 P. 709 (Cal. Dist. Ct. App. 1930)(where

a guest passenger who was fully aware that the driver of the vehicle was under the influence of

intoxicating liquor was injured when the automobile within which he was riding struck a utility's

power pole, the court held contributory negligence to be proper and the passenger guilty.) The trial

court erred in failing to allow this relevant evidence to be considered by the jury.

¶104. I respectfully concur in part and dissent in part.

PRATHER, C.J., AND ROBERTS, J., JOIN THIS OPINION.