United Gas Pipe Line Co. v. Jones

• Citation: 111 So.2d 240,236 Miss. 471
• Decision Date: 13 April 1959
• Docket Number: No. 40976,40976
• Parties: UNITED GAS PIPE LINE COMPANY, B. J. Townsend and Paul B. Townsend, v. Eddie JONES.
• Court: United States State Supreme Court of Mississippi

Page 240

111 So.2d 240

236 Miss. 471

UNITED GAS PIPE LINE COMPANY, B. J. Townsend and Paul B. Townsend, v. Eddie JONES.

No. 40976.

Supreme Court of Mississippi.

April 13, 1959.

Beard, Pack & Ratcliff, Deavours & Hilbun, Laurel, for appellants.

Melvin, Melvin & Melvin, Laurel, for appellee.

KYLE, Justice.

This case is before us on appeal by the United Gas Pipe Line Company, B. J. Townsend and Paul B. Townsend, defendants in the court below, from a judgment of the Circuit Court of the First Judicial District of Jones County rendered in favor of Eddie Jones, a minor, plaintiff in the court below, who sued by his father J. L Jones as next friend, as damages for personal injuries sustained by the plaintiff as a result of an automobile accident which occurred on April 18, 1956, on a state-aid highway running westwardly from a point on U. S. Highway No. 11, in Jones County, to the Leaf River bridge. The appellants were named as defendants in the plaintiff's declaration along with Dawson Johnston, administrator of the estate of David Lee Johnston, deceased, who was operating the automobile at the time the accident occurred.

The automobile involved in the accident was a new 1956 model Oldsmobile which was owned by the defendant B. J. Townsend, and was being used by his son Paul B. Townsend, a minor 14 years of age, with the permission and consent of his father. The accident occurred about 8 o'clock p. m. when the automobile, which was being driven by David Lee Johnston and in which Paul B. Townsend, and Eddie Jones were riding, rounded a curve in the black top highway and collided with a concrete post, which had been erected by United Gas Pipe Line Company as a pipe line marker, on the outer edge of the highway shoulder about 3 or 3 1/2 feet from the edge of the pavement. All three of the boys were riding on the front seat of the car at the time the collision occurred. The car was being driven at a high rate of speed as it entered the curve and veered across the center line of the pavement onto the edge of the highway shoulder. The driver had reduced his speed, however, and was regaining control of movements of the car when it struck the concrete marker near the west end of the curve. The car turned over when it hit the marker, and David Lee Johnston was killed instantly. Eddie Jones was thrown from the car and was seriously injured.

The plaintiff alleged in his declaration that the United Gas Pipe Line Company was negligent in erecting the concrete marker in such close proximity to the black top portion of the highway; that the post was placed in a highly dangerous position because of its close proximity to the traveled portion of the highway, and the pipe line company should have reasonably foreseen that the placing of such post in such position and allowing it to remain there would likely cause serious injury or death to travelers on the highway; that the public had a right to the exclusive use of said highway, and it was negligence and a violation of the law for the pipe line company to obstruct said highway by the erection of said concrete post. The plaintiff alleged 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, knowing that his son was of immature age and could not be expected to exercise reasonable care and prudence in the operation of said automobile; that the said B. J. Townsend knew or should have known that the said Paul B. Townsend would likely turn the car over to or place it in the hands of some other person who was irresponsible, negligent and careless in its operation; 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; and that these facts were known to the defendant B. J. Townsend at the time he permitted his son to operate his car on the highway. The plaintiff alleged that David Lee Johnston, who was operating the automobile with the permission and consent of the defendant Paul B. Townsend, was negligent in failing to use proper care and caution in the operation of the automobile, in that he was driving the same at such excessive and dangerous rate of speed that he was unable to control the movements of the car while driving on a curve in the highway; and that the defendant Paul B. Townsend, who was riding on the front seat of said automobile with the said David Lee Johnston, was negligent in permitting the said David Lee Johnston to operate said automobile in such negligent manner. The plaintiff charged that the injuries which he had suffered as a result of the collision were proximately due to the combined and concurrent negligence of the defendants as set forth in the declaration.

The defendant Dawson Johnston, administrator of the estate of David Lee Johnston, deceased, filed no answer or other pleading and was not represented by counsel during the trial. The other defendants filed answers in which they denied all liability for the injuries complained of in the plaintiff's declaration, and the case was tried before a jury at the November 1957 term of the Court. The jury, after hearing the testimony, returned a verdict for the plaintiff against all of the defendants, for the sum of $40,000, and a judgment was duly entered in favor of the plaintiff for that amount. From that judgment B. J. Townsend and Paul B. Townsend have prosecuted an appeal to this Court without supersedeas. The United Gas Pipe Line Company has prosecuted a separate appeal and has filed a supersedeas bond. Dawson Johnston, administrator, has filed no appeal.

The main points argued by the attorneys for the appellant United Gas Pipe Line Company as grounds for reversal of the judgment of the lower court are: (1) That the court erred in overruling the motion of the pipe line company for a directed verdict at the conclusion of all of the evidence; and (2) that the court erred in overruling the motion of the pipe line company for a new trial on the ground that the verdict of the jury was against the weight of the evidence.

The main points argued by the attorneys for the appellants B. J. Townsend and Paul B. Townsend are (1) that the court erred in failing to sustain the appellants' motions for a directed verdict in favor of each of the appellants, at the conclusion of all of the evidence, and in failing to sustain their motions for a new trial on the ground that the verdict of the jury was contrary to the overwhelming weight of the evidence; (2) that the court erred in admitting testimony which showed that the appellant B. J. Townsend had allowed the appellant Paul B. Townsend to drive vehicles owned by B. J. Townsend on other occasions not connected with the occasion giving rise to this action; and (3) that the trial court erred in granting to the plaintiff certain unnumbered instructions specifically referred to in the assignment of errors.

It is therefore necessary that we give a brief summary of the testimony offered on behalf of the respective parties.

B. J. Townsend, who was called to testify as an adverse witness by the plaintiff, testified that he was the owner of the 1956 model Oldsmobile car which was involved in the wreck on April 18, 1956; that he had let his son, Paul B. Townsend, who was 14 years of age, have the car to drive to prayer meeting and a young people's party; that Paul had driven the car for him on other occasions, but that was the first time he had taken it out by himself. Townsend stated that he told Paul that he could have the use of the car, provided he did not go anywhere else; that he told Paul not to put the car on the highway, apparently meaning U. S. Highway No. 11; and that he told Paul not to let anyone else drive the car. Townsend also stated that he owned a Chevrolet pickup truck, and that Paul had driven the truck to football games and had purchased gasoline when he was driving the car for his father.

Paul B. Townsend, who was also called to testify as an adverse witness by the plaintiff, testified that he was 14 years old at the time of the accident; that he lived with his father about 2 1/2 miles east of Moselle; and that he attended the Moselle High School. Paul stated that he got the keys to the new Oldsmobile from his father during the evening of April 18, 1956, and drove to Moselle, where he picked up Sam Farris, one of his buddies who lived on Highway No. 11; that he and Sam then picked up several others who wanted to go to the prayer meeting; and they all drove back to the church. After the prayer meeting service was over, Paul and several other young people went to a party at the home of Mrs. N. B. Sexton. David Lee Johnston and Eddie Jones were at the party. Paul stated that he and David Lee talked about taking the new car out David Lee asked him to do that. Paul agreed, and David Lee asked Eddie Jones to go along with them. Paul gave David Lee the keys to the car, and the three boys got in the car on the front seat. David Lee got under the steering wheel; Paul sat next to him; and Eddie occupied the seat on the right side. Paul sat next to David Lee to show him how the car operated. They drove out of town, and across U. S. Highway No. 11, and about one mile northwest of Moselle they struck the black top road running westwardly from Five Point to the Leaf River bridge. David Lee said, 'Let's see what it will do on take off.' Paul said, 'Just take off.' David Lee was going about 35 miles an hour at that time. The Oldsmobile was equipped with four speed ranges. David Lee got the car up to a 'pretty good speed.' Paul remonstrated with him. As they entered the curve in the black top highway Paul looked at the speedometer. It registered a rate of speed of 90 miles per hour, and Paul told David Lee to 'slow down.' David Lee applied the brakes, and began to slow down when he entered the curve. The car swerved over on the left side of the highway and onto the shoulder, and was on the left side...