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27 Miss. L.J. 105 (1955-1956)
Comparative Negligence in Mississippi

handle is hein.journals/mislj27 and id is 115 raw text is: 1956] COMPARATIVE NEGLIGENCE IN MISSISSIPPIt Dan H. Shell and Cary E. Bufkin* Mississippi's first comparative negligence statute was passed in 1910. Older members of the bar say that the statute was the brain child of a small group of damage suit lawyers who were constantly facing verdicts directed for the defendants arising out of the commnon law bar of contrib- utory negligence. The original act' applied only to personal injury and death cases. Ten years later the act was amended to include actions brought for injury to property.2 That portion of the act which deals specifically with contributory negligence reads as follows: Contributory negligence no bar to recovery of damages-jury may diminish damages-in all actions hereafter brought for personal injuries, or where such injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property, or person having control over the prop- erty may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property.'3 Under statutes such as the above, one of the first questions reason- ably to be anticipated is whether the act is constitutional. Shortly after the enactment of the original act, its constitutionality was tested in a case4 wherein a railroad switchman sought recovery for a serious foot in- jury sustained while attempting to push an alleged defective drawhead into place. Upon the jury returning a substantial verdict for the plain- tiff, the defendant appealed, contending that the uncontradicted evi- dence showed that plaintiff was likewise guilty of negligence, and that, therefore, the lower court erred in granting instructions authorizing diminution of damages proportionately and, likewise, in refusing to grant instructions which would preclude recovery should the jury find that the plaintiff was guilty of any negligence proximately contribu- ting to the injury. Two bases of unconstitutionality were urged: 1. That the statute virtually divested the constitutional courts of jurisdiction by conferring judicial power on the jury, in viola- tion of article six of the Mississippi Constitution of 1890; and tAdapted from an address given at the Arkansas Law Institute, October 1955. *Satterfield, Shell, Williams, and Buford, Attorneys at Law, Jackson, Mississippi. 'Miss. Laws 1910, c. 135. 2Miss. Laws 1920, c. 312. 3Miss. CODE ANN. § 1454 (1942). 4Natchez & S.R.R. v. Crawford, 99 Miss. 697, 55 So. 596 (1911).