Ashe v. Hughes, 39028

• Decision Date: 04 January 1954
• Docket Number: No. 39028,39028
• Citation: 219 Miss. 395,69 So.2d 210
• Parties: ASHE et al. v. HUGHES et al.
• Court: Mississippi Supreme Court

Page 210

69 So.2d 210

219 Miss. 395

ASHE et al. v. HUGHES et al.

No. 39028.

Supreme Court of Mississippi.

Jan. 4, 1954.

Lumpkin & Holland, Tupelo, for appellants.

Barrett & Long, Tupelo, for appellees.

LOTTERHOS, Justice.

Appellees brought suit for damages for the destruction of their authomobile in a highway wreck, and obtained a verdict for $300, from which an appeal is taken. The sole assignment of error involves an instruction given the plaintiffs.

On the night of August 5, 1952, a wrecker owned by appellants, and then operated by their employee, was engaged in rescuing a wrecked Chevrolet car which had run off the paved highway, about two miles north of Okolona, and several miles south of Tupelo. At about nine-thirty the car had been pulled up on the highway, facing north on the east half of the pavement. The wrecker was placed immediately in front of the Chevrolet, and the operator of the wrecker was in process of lifting the front end of the disabled car, preparatory to towing it to Tupelo. At that time Paul K. Hughes, one of the appellees, approached the scene in appellees' Ford car, driving north from Okolona. Three other persons were in the car with him. The Ford car crashed into the rear end of the disabled Chevrolet, and as a result the Ford automobile was demolished, and other damage was done.

There was conflicting testimony with respect to the presence or absence of lights on the wrecker, the nature of such lights, the speed of appellees' Ford, and other factors bearing on the cause of the accident. But it was admitted that, although the wrecker was equipped with flares, they were not lighted and set out on the highway on that occasion.

Section 8256, Code of 1942, as amended by Sec. 11, Chap. 420, Laws of 1946, provides that no person shall operate any truck or bus on any highway outside a municipality or adjacent residential section at night unless there be carried in the vehicle, ready for use, flares, and certain other safety appliances; and further provides that 'whenever any motor truck or bus or its lighting equipment is disabled during the period when lighted lamps must be displayed on vehicles and such motor truck or bus cannot immediately be removed from the main traveled portion of a highway outside of a business or residence district, the driver or other person in charge of such vehicle shall cause such flares, fusees, or other signals to be lighted and placed upon the highway,' one a hundred feet to the rear, one a hundred feet in front, and one beside the vehicle.

Seeking to apply this statute to the present case, the plaintiffs obtained the following instruction:

'The court instructs the jury for the plaintiffs that the law of the State of Mississippi required the operator of the Ashe wrecker to display flares or fusees; one at a distance of approximately one hundred feet to the rear of the wrecker, one approximately one hundred feet in advance of the wrecker and a third upon the roadway side of the wrecker. If you believe from a preponderance of the evidence that the failure on the part of the operator of the Ashe wrecker to display flares or fusees in this manner was a proximate cause of the collision, then you will return a verdict for the plaintiffs.'

We have concluded that the statute does not apply to a wrecker which is engaged in its normal use on the highway, and is in no sense 'disabled.' The statute must be construed and enforced as written.

In coming to this decision we do not hold that a wrecker is not a truck within the terms of the statute. Although we find no statutory definition of a truck, and although there is some authority from other states to the contrary, we are of the opinion that a wrecker is within the meaning of the term 'truck' as used in this statute. We are supported in this view by Pollard v. Stansell, 169 Miss. 136, 152 So. 646, wherein a Ford coupe, equipped with a pick-up body and capable of...