Aycock v. Burnett

Decision Date05 May 1930
Docket Number28581
Citation157 Miss. 510,128 So. 100
CourtMississippi Supreme Court
PartiesAYCOCK v. BURNETT et al

Division B

1 AUTOMOBILES. Evidence presented jury question whether occupant of colliding automobile was owner and whether car was being driven on his mission and caused accident by driver's negligence.

In a suit for damages, a statement made by a defendant, who was riding in an automobile driven by another on a joint mission to the effect that the car did not belong to him altogether that he traded his old car, and gave his son one hundred dollars to finish paying on it, with the understanding that he could use the car for business and other purposes, is sufficient to go to the jury upon the question of whether or. not he was an owner of the car, and whether it was being driven on a mission of his own and caused the injury by negligence of the driver; and peremptory instructions should not be given to such defendant on the theory that he was not the owner of the car, but a mere guest riding therein.

2. AUTOMOBILES. Instruction for defendants, even if defendants were on wrong side of road, if plaintiff's failure to turn to right was sole proximate cause of collision, held error.

In a damage suit for the negligent operation of an automobile where the evidence is conflicting as to which side of the road the respective parties were at the time of the accident and as to the circumstances attending the injury, it is error to instruct the jury that "even should you believe defendants were on the wrong side of the road, still if you believe from the evidence that the plaintiff saw the defendants and knew they were the wrong side of the road and that plaintiff, by turning to the right, could have avoided the injury and that he failed so to do, and such failure was the sole proximate cause of the accident, it is your duty to find for the defendants."

3. AUTOMOBILES. Instruction defendants had right to believe plaintiff would turn automobile to right as soon as practical after passing parked automobile held error under evidence; both automobile drivers must do what reasonable man would do to avoid collision; neither of colliding automobile drivers can escapeliability by saying he believed other would do something to prevent accident.

It is error in a suit for damages for a collision of automobiles, where there was a conflict in the evidence as to the fault of the respective parties, plaintiff and defendant, turning around cars on the side of the highway, to instruct the jury "that the defendant had a right to believe that the plaintiff would turn to his right as soon as practical after passing the car parked on the road and they had a right to rely on this belief." It is the duty of each of the parties in such case to do that which a reasonable man would do to avoid the accident, and he could not absolve himself from liability for negligence merely by saying he believed the other party would do something that would prevent the accident.

HON. W. L. CRANFORD, Judge.

APPEAL from circuit court of Jasper county, Second district HON. W. L. CRANFORD, Judge.

Action by Max Aycock against R. J. Burnett and others. From an adverse judgment, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Collins & Collins, of Laurel, for appellant.

The peremptory instruction for R. J. Burnett should not have been given.

Ownership of the machine was not at all necessary to fix liability. The doctrine of respondeat superior might be applied to him.

Windham v. Newton, 76 So. 24.

When two or more people are engaged in a joint adventure each is responsible for the torts committed by the other while acting directly in the business of the joint enterprise.

Crescent Motor Co. v. Stone, 101 So. 49; Woods v. Clements, 74 So. 422; Southern Express Company v. Brown, 7 So. 318.

If the defendants had a right under the law to rely on the belief that the plaintiff would keep to the right of the road then the plaintiff would also, have the right to rely on the belief that the defendants would keep to the right of the center of the road. The instructions given deny this right to the plaintiff.

The giving of instruction in the following words was error.

"The court instructs you that the defendant had a right to believe that the plaintiff would turn to his right as soon as practical after passing the car parked on the road, and they had a right to rely on this belief."

To warrant this instruction the court had to assume as a fact that in passing the car parked on the side of the road it was necessary for the plaintiff to pass over the left of the center of the road, and the testimony on this question was in conflict.

W. S. Welch and Ellis B. Cooper, both of Laurel, for appellees.

If R. J. Burnett was a joint adventurer, his relationship with the driver was not such as to create the relation of master and servant or create liability in him.

Hartley v. Miller, 130 N.W. 336; Simeon v. Lindsay, 6 Del. 224, 65 A. 778; Withey v. Fowler, 164 Iowa 377, 145 N.W. 923; Pope v. Halpeon, 193 Cal. 168, 223 P. 470; Bryant v. P. Ry. Co., 174 Cal. 737, 164 P. 385; Barry v. Harding, 244 Mass. 588, 139 N.E. 298; Lawrence v. Sioux City, 172 Iowa 320, 154 N.W. 494; Director-General v. Price, 135 Va. 329, 116 S.E. 351; G. M. & N. R. R. Co. v. Brown, 102 So. 855, 138 Miss. 39; Y. & M. V. R. R. Co. v. Lucken, 102 So. 393, 137 Miss. 572.

An instruction setting out the last clear chance doctrine bears on facts and even though defendant might have been guilty of negligence, still, if the plaintiff can avoid injury, it is his duty to do so.

Section 8 of chapter 116 of Laws of 1916, section 6686 of Hemingway's 1927 Code.

The instruction informing the jury that the defendant had a right to believe and rely thereon that plaintiff could turn to right as soon as practical after passing parked car, is sustained by section 6686, Hemingway's Code 1927.

OPINION

Ethridge, P. J.

The appellant was plaintiff and filed a suit in the circuit court for damages for an injury occasioned by the collision of an automobile driven by Coburn Hinton and R. J. Burnett and a Ford truck driven by the plaintiff. The suit was filed against R. J. Burnett, Barnett Burnett, and Coburn Hinton. It appears that R. J. Burnett and Coburn Hinton were going south in the direction of Laurel from a point north of Stringer, Mississippi, and that the plaintiff, Max Aycock, was going north from Laurel, and had crossed the railroad at Stringer, and was proceeding north. There was a car parked on the right-hand side going north and another near by, parked on the left-hand side going north, or the right-hand side coming south. These cars were not very distant from each other, and it appears that the truck going north occupied by the plaintiff passed the car situated on the right-hand side of the road, and the defendant had passed the car on the right coming south, and the collision occurred near this point.

There is considerable conflict in the evidence as to the facts. From the plaintiff's standpoint it appears that he was traveling north, and had passed the car upon the right, and had returned to the right-hand side of the road, and was near the right-hand side of the road at the time of the collision, and that the car driven by the defendants was upon the same side of the road, in other words, on the left of the center of the road for a car coming south, and that the defendants were traveling at a high rate of speed. From the defendants' standpoint, the defendants were traveling south at the rate of speed of about twenty-five miles an hour, and had turned to pass the car parked on the west side of the road, the right coming south, and the plaintiff did not turn back to the right after passing the car, as they expected him to do, and as from their viewpoint he ought to have done; that, when they saw he was not going to turn, they put on brakes, and a collision occurred near the center of the road. The collision was not a head-on collision, but was a collision between the fenders of the two cars.

There is also considerable dispute as to the location of the cars after the injury. It was the contention of the plaintiff that he was traveling at twenty or twenty-five miles...

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