B. Kullman & Co. v. Samuels

Citation114 So. 807,148 Miss. 871
Decision Date12 December 1927
Docket Number26747
PartiesB. KULLMAN & CO. et al. v. SAMUELS et al. [*]
CourtUnited States State Supreme Court of Mississippi

Division B

1. MUNICIPAL CORPORATIONS. Negligence of automobile driver striking pedestrian when making turn at intersection held for jury. In action for death, resulting when deceased pedestrian was struck by an automobile making a turn at an intersection evidence relative to automobile driver's negligence held for jury.

2. MUNICIPAL CORPORATIONS. Instruction requiring automobile driver to have car under control when entering intersection held not erroneous under evidence.

Instruction in action for death resulting when deceased pedestrian was struck by automobile, requiring driver to have his car under control so as to avoid striking any one when entering intersection, held not erroneous, in view of evidence thereon.

3. MUNICIPAL CORPORATIONS. Automobile driver, on entering intersection, must give signals meeting requirements of due care, in view of circumstances.

An automobile driver is required, not only to give statutory signals before entering intersection to make turn, but also must give such other signals that will meet requirements of due care, in view of surrounding conditions and circumstances.

4. MUNICIPAL CORPORATIONS. Instruction requiring automobile driver making turn at intersection to sound horn or warn pedestrians held not erroneous.

Instruction in action for death of pedestrian struck by automobile when making turn at intersection, requiring automobile driver to sound horn or give signal to warn pedestrians of approach of car, held not erroneous, in view of evidence taken in connection with circumstances and surroundings.

5. TRIAL. Language of instruction should be given popular significance.

Language of instructions as given by court should be given popular significance.

6. MUNICIPAL CORPORATIONS. Instruction requiring automobile driver making turn at intersection to stop when blinded by other lights held not erroneous.

Instruction in action for death of pedestrian struck by automobile making turn at intersection, to effect that driver, when being blinded by other lights, should stop his car, held not erroneous, since, giving language its popular significance, instruction means only that driver should stop car as soon as reasonably possible, considering conditions with regard for safety of himself and others.

7. DEATH. Ten thousand dollars for death of eighty-five year old woman held excessive.

Ten thousand dollars for death of eight-five year old woman having no income and no estate held excessive.

HON. R. L. CORBAN, Judge.

Appeal from circuit court of Adams county, HON. R. L. CORBAN, Judge.

Action by Mrs. Alice Samuels and others against B. Kullman and another, doing business as B. Kullman & Co., and another. Judgment for plaintiffs, and defendants appeal. Affirmed on condition that plaintiffs enter a remittitur.

Judgment affirmed.

E. H. Ratcliff and George Butler, for appellant.

It was error for the court to instruct the jury that Michael Kullman was bound to "at once" have stopped his car when he became blinded by the lights. This in effect was a peremptory instruction for the appellees. If this instruction was proper, then the court should have peremptorily instructed the jury to find for the appellees, plaintiffs in the court below. Kullman was not negligent under the facts shown by the record, in not, at once, stopping his car when he became blinded by the headlights of Hall Wilson's car. If one stops all must, or the danger would be thereby increased, and if all stop, how can anyone reach his destination? In reason, traffic must be permitted to move at all times, but one driving, when blinded by a light, must do so in a careful and prudent manner, with due regard for the safety of others and what is careful and prudent, under the particular circumstances, and conditions, is a question for the jury and not for the court. Devote v. United Auto Transportation Co., 128 Wash. 604, affirmed on rehearing, 130 Wash. 707; Melton v. Manning (Tex. Civ. App.), 216 S.W. 448.

We have found no case which lays down the strict rule announced in the instruction complained of in this case. There are numerous cases to the effect that it is a question for the jury whether or not under such circumstances the driver of an automobile exercised due care and caution, but in no case has the court told the jury as a matter of law that it was the duty of the driver of an automobile to at once stop his car when blinded by the glare of headlights while proceeding across an intersection of two streets situated as the streets in question were. Mathers v. Bottsford (Fla.), 97 So. 282, 32 A. L. R. 881, holds the driver of an automobile, when blinded by the glare of the headlights, to a very high degree of care, but even that case does not go to the point of holding as a matter of law, the driver is negligent if he does not stop "at once" when so blinded.

This instruction is also erroneous and misleading, because not based upon facts shown in the record. The court erred in giving the appellees their first instruction. This instruction is a lengthy one, and predicates liability on three grounds. In it the jury is told that if Kullman at the time of and after turning in Main street to go into Union street, (a) did not have his car "under control" so as to avoid striking pedestrians in the street, or, (b) "that he was not keeping a proper lookout for pedestrians" at the time of such turning, or, (c) "did not sound his horn or give a signal" so that any pedestrian, who might then be crossing or in the act of crossing Union street, might be warned of his approach from Main street into Union street, and as a result thereof Mrs. Sanford was injured, then they would find for the plaintiffs. This instruction is erroneous for several reasons. In the first place, there is no evidence whatsoever that Kullman did not have his car under control. To the contrary it appears that he was driving very slowly, not exceeding eight miles per hour. In the second place, he was not required to sound his horn or give a signal, except before proceeding to make the turn. The judgment is excessive. Railroad Co. v. Moore, 101 So. 768; G. & S. I. R. Co. v. Boone, 120 Miss. 632; Hardwood Lbr. Co. v. Cinquimani, 137 Miss. 72. The "recovery cannot be enlarged on account of the horror and terrible shock of a tragedy of this kind" and there is no element of punitive damages. G. & S. I. R. Co. v. Boone, supra; 19 R. C. L. 221; Cumberland Tel. & Tel. Co. v. Pitchford, 30 So. 41; L. R. A. 1916C, p. 885N. Looking at the matter from one standpoint, there is nothing that can compensate the appellees for the loss of their mother. The test is not what you would demand before you would consent for your mother to be killed under such circumstances. The question is not what sum of money would be sufficient to induce a person to undergo voluntarily the pain and suffering for which recovery is sought, not what it would cost to hire some one to undergo it. Standard Oil Co. v. Tierney, 92 Ky. 367; Baker v. Pa. Co., 142 Pa. St. 503; Goodhart v. Pa. R. R. Co., 177 Pa. St. 1; 8 R. C. L. 462.

L. A. Whittington, for appellees.

Peremptory instruction was justified under the facts and evidence and the law. We consider this proposition now, before answering the errors complained of in the instructions given by the court to appellees, for if we are correct in this view, errors, if any, in the instructions given will be unavailing to appellants. See Ulmer v. Pistole, 115 Miss. 485; Eiseman v. Griffith, 167 S.W. 1142; Hornbuckle v. McCarty, 25 A. L. R. 1508; McDonald v. Yoder, 101 P. 468; Kelly v. Schmidt & Zeigler, 76 So. 250; 8 Thompson on Negligence (White's Supplement), par. 1340 (h); Warner v. Breitholf, 181 P. 808; Baker v. Savas, 172 P. 672; Myers v. Bradford, 201 P. 471. Upon the question of warning to be given any pedestrian, see section 5778, Hemingway's Code 1917; Carlston v. Mesuberger, 204 N.W. 432; Courvosier v. Burger, 215 P. 93.

As to the rate of speed, or as to whether or not appellant, Michael Kullman, had his car under control, see section 6680, Hemingway's Code. If the statute is to be made applicable at all, under what circumstances, or under what facts, would it be more necessary to apply it than the circumstances and facts of this case? Irwin v. Judge, 71 A. 572; Lorach v. Rhinehart, 89 A. 967.

Instructions given to appellees were correct. Hennessey v. Taylor, 189 Mass. 583, 3 L. R. A. (N. S.) 345 and note; Mudenberg v. Kavanaugh, 17 Ohio App. --; Hammond v. Morrison, 100 A. 154; Jaquith v. Worden, 48 L. R. A. (N. S.) 827. Was the judgment excessive? See Ulmer v. Pistole, 115 Miss. 485.

In Hardwood Lumber Company v. Cinquimani, 137 Miss. 72 this court passed upon the item solely of damages for pain and suffering. In that case, the evidence showed that the deceased was injured some time between seven and nine o'clock in the morning, and lived until about one o'clock in the afternoon of that same day. He was injured by being struck on the head by a piece of timber which fell from a flat car, causing a fracture of his skull and bleeding from the ears, nose and mouth. The physician testified that when he first saw the injured man he was in an unconscious or semi-conscious condition, but that there were intervals of apparent consciousness and during these intervals, he gave evidence of intense pain and suffering. In that case, this court held that five thousand dollars was sufficient damage for the pain and suffering. In the instant case, the evidence shows that the deceased was injured on the 16th day of February and died on the 25th. The evidence further shows that she suffered intense pain. The doctor...

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