Allen v. Friedman

• Citation: 125 So. 539,156 Miss. 77
• Decision Date: 13 January 1930
• Docket Number: 28319
• Court: United States State Supreme Court of Mississippi
• Parties: ALLEN v. FRIEDMAN

125 So. 539

156 Miss. 77

ALLEN v. FRIEDMAN

No. 28319

Supreme Court of Mississippi

January 13, 1930

Division A

1 AUTOMOBILES. Instruction injury inflicted by automobile traveling more than fifteen miles per hour at intersection was prima-facie evidence of negligence, and that plaintiff had burden to show negligence, held proper.

In action for injuries sustained in automobile collision at intersection, instruction that proof of injury inflicted by an automobile being driven on streets of city at speed of more than fifteen miles per hour was prima-facie evidence of negligence on part of driver, supplemented by instruction to effect that burden was on plaintiff to show that accident was caused by negligence of defendant held to correctly state law applicable to facts.

2. APPEAL AND ERROR. Plaintiffs counsel's reference in argument to defendant's insurance in automobile accident case held harmless, where defendant voluntarily testified regarding insurance.

In action for injuries sustained by plaintiff in automobile accident, plaintiff's counsel's reference in closing argument to defendant's insurance held harmless, where defendant had voluntarily testified that he informed driver of automobile in which plaintiff was riding that his liability, if any, was covered by insurance, and proposed that they later take up the matter of liability with his insurance company.

3 DAMAGES. Two thousand five hundred dollars for injuries to pregnant woman, confined to bed for several weeks and threatened with miscarriage several times, held excessive by one thousand five hundred dollars.

Two thousand five hundred dollars for injuries sustained by plaintiff, a pregnant woman, when thrown against front seat of automobile on her stomach, with result that she fainted suffered from shock and nervousness, was treated several times by doctor to prevent miscarriage, was confined to her bed for periods of varying length for three or four weeks, and lost about six pounds in weight, held excessive by one thousand five hundred dollars.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Hancock county HON. W. A. WHITE, Judge.

Action by Mrs. Maurice Friedman against Roy O. Allen. From a judgment for plaintiff, defendant appeals. Affirmed, with remittitur.

Judgment affirmed.

Carl Marshall and E. J. Gex, both of Bay St. Louis, for appellant.

Although a violation of a statute is negligence per se, there must be a causal connection between the unlawful act and the injury, which must be shown in pleading and by the proof--or the action fails. If the injury would have occurred regardless of the violation of the statute the defendant cannot be said to be liable therefor. And upon the plaintiff rests the burden of proving that the defendant's unlawful act was the cause of the injury.

45 C. J., 902, section 479; Schell v. Du Bois, 13 Neg. & Comp. Cases Annotated; City Ice Delivery Co. v. Lecari, 98 So. 901; Shafer v. Meyers, 112 So. 230.

W. J. Gex, of Bay St. Louis, for appellee.

Under sections 7577, 5781, and 5785, Hemingway's Code (Laws of 1916, chapter 116), prescribing rules governing the use of motor vehicles on public highways, and making the injury to persons or property by such vehicles prima-facie evidence of violation of the law as to the operation and, as to negligence, the burden is on the driver or owner to show exercise of due care, and the observance of the statutes, and unless he does so, a judgment against him will not be reversed on the ground that he was justified by necessity in colliding with the injured vehicle.

Flinn v. Fondren, 122 Miss. 248; A. & V. R. R. Co. v. Thornhill, 106 Miss. 387; Miss. Ry. Co. v. Knight, 138 Miss. 622.

The well-established rule is that when improper remarks are made to a jury, and the court instructs the jury to disregard same, the injured party's right is to move for a mistrial; but when the defendant undertakes to speculate on the results of a case under such conditions and takes his chances with the jury to whom the improper remarks are made, he will not be heard afterward to complain that such remarks prejudiced the jury.

Allen v. State, 148 Miss. 229; Morris v. State, 148 Miss. 680; Matthews v. State, 148 Miss. 696; Ransom v. State, 149 Miss. 262; Holmes v. State, 151 Miss. 702; South Central Telephone Co. v. Corr, 124 So. 294; Fairley v. State, 152 Miss. 656.

OPINION

Cook, J.

The appellee, Mrs. Maurice Friedman, instituted this suit in the circuit court of Hancock county against the appellant, Roy O. Allen, seeking to recover damages for personal injuries alleged to have been sustained in an automobile collision, which occurred at the intersection of St. Francis and Washington streets in the city of Bay St. Louis. From a judgment in favor of appellee for two thousand five hundred dollars, this appeal is prosecuted.

The collision in which the appellee sustained injuries occurred at the intersection of St. Francis and Washington streets in the city of Bay St. Louis, which cross each other at right angles. She was riding on the rear seat of an automobile which was traveling north on St. Francis street, and was being driven by her father, F. E. Benjamin. The appellee and her witnesses testified that, when the automobile in which she was riding was about forty feet from the Washington street intersection, the driver of the automobile sounded the horn thereof; that the view from St. Francis street down Washington street was obstructed by a building standing at the corner of the two streets; that when the automobile reached a point seven or eight feet from the line of Washington street it came to a full stop, and the horn was again sounded; that no sound of a car approaching on Washington street was heard by the occupants of the automobile, and thereupon the automobile in which she was riding started across the intersection of these streets at a rate of seven or eight miles an hour; that when it reached a point about the center of the intersection it was struck by appellant's heavy automobile, which was traveling east on Washington street at the rate of about twenty-five or thirty miles an hour; that the automobile in which the appellee was riding was struck near the front, breaking off the bumper and crushing the front wheel. As to the injuries sustained, appellee testified that she was thrown...