Avery v. Collins

• Decision Date: 14 January 1935
• Docket Number: 31420
• Citation: 158 So. 552,157 So. 695,171 Miss. 636
• Court: Mississippi Supreme Court
• Parties: AVERY v. COLLINS

157 So. 695

158 So. 552, 171 Miss. 636

AVERY v. COLLINS

No. 31420

Supreme Court of Mississippi

January 14, 1935

Division B

November 19, 1934

APPEAL from the circuit court of Adams county HON. R. L. CORBAN Judge.

Action by Evelyn Collins, administratrix, against H. E. Avery. Judgment for plaintiff, and defendant appeals. Affirmed as to liability; reversed and remanded as to damages.

On motion to retax costs. Motion overruled.

For former opinion, see 157 So. 695.

Affirmed as to liability; reversed and remanded as to damages. Motion overruled.

Brandon & Brandon, of Natchez, for appellant.

Automobile drivers are not insurers of the safety of pedestrians. The word "insure" means to make sure, to make certain to guarantee, or to underwrite. It goes many steps farther, in its meaning, than is generally understood by the requirement that a man shall exercise that due and reasonable precaution that another reasonably cautious man would exercise under the same or similar circumstances.

Karpeles v. City Ice Delivery Co., 198 Ala. 614, 73 So. 642.

A motorist confronted by a sudden emergency need only exercise ordinary care in the stress of circumstances to avoid injury to another.

Vann v. Tankersly, 164 Miss. 784, 145 So. 642.

Under one instruction the jury may have indulged in speculation as to the damages to the mother occasioned by her own mental anguish and grief from the death of her son; they may have considered the comfort the boy may have been to her in her old age; donations and contributions the boy might have given her when he became of age and able to earn his own living, and innumerable other elements each and all of which were and would have been improper in this case.

Davis, Director General of Railroads, v. McCullers, 126 Miss. 521, 89 So. 158.

It was reversible error on the part of the trial court to have refused to the defendant his requested instruction against the recovery of damages as for prospective earnings; for, manifestly, if such damages were not recoverable under the state of facts in the case at bar, the defendant was entitled to an instruction to that effect.

Mississippi Cotton Oil Co. v. Smith et al., 95 Miss. 528, 48 So. 735, 737; Railroad v. Crudup, 63 Miss. 303; Railroad v. White, 82 Miss. 471, 34 So. 331; Telephone Co. v. Anderson, 89 Miss. 745, 41 So. 263.

Even where a recovery is permissible under the statutes for the pain and suffering endured by the deceased as a consequence of the injury, there can be no recovery for this element where the death of the deceased was practically instantaneous or where he was unconscious from the time of the injury up to his death.

17 C. J., Death, page 1337, sec. 213; St. Louis, etc., R. Co. v. Craft, 237 U.S. 648, 35 S.Ct. 704, 59 L.Ed. 1160; Great Northern Ry. Co. v. Capital Trust Co., Admr., etc., 242 U.S. 144, 147, 37 S.Ct. 41, 61 L.Ed. 208, L. R. A. 1917E, 1050; Cheatham v. Red River Line, 56 F. 248, 60 F. 517, 9 C. C. A. 124; St. Louis, etc., R. Co. v. Dawson, 68 Ark. 1, 4, 56 S.W. 46.

In the case at bar, the very severity of the injuries inflicted upon the deceased were such that he was rendered immediately unconscious. He could not have suffered either fright or pain for more than a fraction of a second, or certainly for not more than one or two seconds.

Illinois Central R. Co. v. Fuller et al., 106 Miss. 65, 63 So. 265. Rowe v. Fair, 157 Miss. 326, 128 So. 87.

Engle & Laub, of Natchez, for appellee.

It is true that the elements of damages which should enter into the verdict have been rewritten by our court since the Gulf & Ship Island Railroad Company v. Boone, 82 So. 335, 120 Miss. 632, being so rewritten in the case of Natchez Coca Cola Bottling Company v. Watson, 133 So. 677, 160 Miss. 173, so that the parties interested in a case where death has occurred to a minor son and brother "can recover, not the value of a decedent's life expectancy, but the present value of any pecuniary advantage which the evidence disclosed the parties interested had a reasonable expectation of deriving from the decedent, had he continued to live." Yet, nevertheless, the facts as disclosed by the record in the death case now before the court uphold a verdict of seven thousand five hundred dollars.

Cudahy Packing Co. v. Ellis et al., 140 So. 918, 109 Fla. 186; Kress v. Sharp, 159 Miss. 283.

Upon approaching a person walking in the roadway of a public highway, or a horse or horses, or other draft animals, being ridden, led or driven thereon, a person operating, or causing to be operated a motor vehicle, shall give or cause to be given, reasonable warning of its approach, and use every reasonable precaution to insure the safety of such person or animal, and, in case of horses or other draft animals, to prevent frightening the same.

Section 5572, Code of 1930.

The driver of an automobile must keep his machine constantly under control; he must continue on the alert for pedestrians and others using the streets and must anticipate their presence.

Ulmer v. Pistole, 115 Miss. 485, 76 So. 522.

Argued orally by Gerard Brandon, for appellant, and by S. B. Laub, for appellee.

OPINION

Griffith, J.

Appellee, as administratrix, sued for the death of her minor son, caused by the alleged negligence of the defendant as the owner and driver of an automobile upon a public highway. There was a verdict and judgment for the plaintiff for seven thousand five hundred dollars.

Upon the issue of liability, appellant complains that the verdict is against the overwhelming weight of the evidence. The proof introduced by the plaintiff, leaving aside that for the defendant, is amply sufficient to sustain the verdict on liability; but we are of the opinion that the evidence of the defendant himself and that of his other witnesses and those facts which are undisputed, when taken together, are sufficient to impose liability. The facts, in brief, accepting defendant's own version, as qualified by his several witnesses who were with him in the automobile, are as follows: Appellant was driving westwardly on public highway No. 22, in Adams county, in the unincorporated settlement called Cranfield. At this point, the highway crosses the railroad, and thence proceeds westwardly alongside the railroad upon level and open ground. After appellant had crossed the railroad and had reached a point about fifty feet beyond and west of the crossing, he saw the deceased, a negro boy thirteen years of age, about one hundred fifty to one hundred seventy-five feet further west walking in the road, and about four feet from his right-hand side of the gravelled roadway, which was about eighteen feet wide. Deceased was walking westwardly, with his back to the approaching automobile, and was unaware of its approach. Upon seeing deceased so situated, appellant sounded his horn, and thereupon, observing that the deceased paid no attention and was still apparently unaware of the approach of the automobile, appellant turned to the left, and proceeded at an undiminished speed of about thirty miles an hour, with the expectation, as appellant says, of passing on the left-hand side of the road and to the left of deceased in the road. When the automobile traveling at the undiminished speed of about thirty miles an hour, and running then on the left-hand side of the road, reached a point about twenty feet from the deceased, the latter for the first time became aware of the automobile, and instantly jumped to his left, and into the path which the automobile was then pursuing, and was so severely injured that he was rendered unconscious and died soon thereafter without regaining consciousness.

It is the law of the road in this state that automobiles shall be driven on their right-hand side of the road or street; the only exceptions being when necessary to pass inanimate or insensate obstructions, or when overtaking any horse, draft animal, or other vehicle, or in rare and limited cases of sudden emergency. The law, section 5574, Code 1930, requires that pedestrians shall walk on their left-hand side of the road, so as to face approaching vehicles, which, being entitled to their right-hand side, would thus approach facing a pedestrian who is on his left-hand side. But the law does not authorize automobiles to turn to their left-hand side of the road to pass pedestrians who are on the pedestrian's right-hand side; the cases in which automobiles may turn to the left being stated in the opening sentence of this paragraph.

When, therefore, the driver of an automobile sees a pedestrian walking in the road on the pedestrian's right-hand side, and with his back to the automobile, and thus upon the side which the automobile is entitled to hold, it is the duty of the driver of the automobile to "give or cause to be given, reasonable warning of its approach, and use every reasonable precaution to insure the safety of such person." Section 5572, Code 1930. Or as said in Ulmer v. Pistole, 115 Miss. 485, 492, 76 So. 522, 524, "the driver of an automobile must keep his machine constantly under control; he must continue on the alert for pedestrians and others using the streets (and roads), and must anticipate their presence;" and this entails the further requirement that the driver must be alert not to injure a pedestrian whose presence is, or should have been, discovered.

We have often heretofore stated in the written opinions of this court that automobiles have become of such general use and form so largely a part of the daily lives and experiences of our people that judicial knowledge may be taken of those prominent facts in respect to them or their operation which are a part of the common knowledge of every person of ordinary understanding and observation. We may accordingly take notice of...