Belk v. Rosamond

• Decision Date: 17 March 1952
• Docket Number: No. 38222,38222
• Citation: 213 Miss. 633,57 So.2d 461
• Parties: BELK et al. v. ROSAMOND et al.
• Court: Mississippi Supreme Court

Page 461

57 So.2d 461

213 Miss. 633

BELK et al. v. ROSAMOND et al.

No. 38222.

Supreme Court of Mississippi.

March 17, 1952.

Perry Morton, Itta Bena, Robertson Horton, Winona, for appellants.

John H. Shands, Vaiden, Crawley & Brooks, Kosciusko, for appellees.

KYLE, Justice.

R. C. Belk and his wife, Mrs. Linnie Braswell Belk, the father and mother of Myra Morice Belk, deceased, and Charles Belk and Annette Belk, minor brother and sister of Myra Morice Belk, deceased, plaintiffs, sued G. M. Rosamond and his wife, Mrs. Inez Rosamond, and B. F. Wiley, Mrs. Lynn Wiley and Frank Wiley, Jr., a minor, defendants, in the Circuit Court of Carroll County, for damages for the wrongful death of Myra Morice Belk, who died on May 24, 1950, as a result of personal injuries received by her while she was riding on the left front fender of a Pontiac automobile owned by G. M. Rosamond and being driven by his wife, Mrs. Inez Rosamond, when the Rosamond automobile came in contact with another Pontiac automobile owned by B. F. Wiley, which was parked on the south side of the bridge over Big Black river on Highway No. 35 about five miles east of the Town of Vaiden. The Wiley automobile had been parked on the bridge about 4:30 o'clock a. m. by Frank Wiley, Jr., after he had had a blowout in the right rear tire about 150 feet east of the west end of the bridge while he and two other boys were on a fishing expedition.

The collision, which resulted in the death of Myra Morice Belk, occurred between 3:00 and 4:00 o'clock in the afternoon, when the automobile which was being driven by Mrs. Rosamond collided with the parked automobile owned by B. F. Wiley, while Mrs. Rosamond was driving west-wardly over the bridge toward the Town of Vaiden.

The plaintiffs alleged in their declaration that Mrs. Rosamond was grossly negligent in the operation of the automobile on which Myra Morice Belk was riding, and that her negligence proximately contributed to the injuries and death of Myra Morice Belk, and that Frank Wiley was grossly negligent in parking the Wiley automobile on the south side of the Big Black river bridge, and leaving the same on the bridge unattended for a period of several hours, and that his negligence likewise contributed to the injuries and death of Myra Morice Belk.

The negligence charged against Mrs. Rosamond was (1) that she was negligent in permitting a child of such tender years to ride upon the left front fender of the automobile which she was driving, when she knew or should have known that the position in which the child was placed was a position of great danger; (2) that she was negligent in driving the automobile at an excessive rate of speed in view of the position occupied by Myra Morice Belk at the time of the collision; (3) that she was negligent in operating the automobile at a dangerous rate of speed when she undertook to pass the parked car on the bridge; (4) that she was negligent in failing to keep the automobile which she was driving on the right or north side of the bridge, so as to avoid a collision with the parked car owned by the Wileys; and (5) that she was negligent in failing to keep the automobile which she was driving under proper control so as to avoid a collision under the circumstances involved and known to her.

The plaintiffs charged that Frank Wiley, Jr., was negligent in the following particulars: (1) That he had carelessly and negligently parked the automobile which he was driving and which he had under his control on the bridge in violation of the provisions of Section 8217, Code of 1942; (2) that he had carelessly and negligently parked the automobile which he was driving on the main traveled part of the highway, without leaving a clear and unobstructed width of 20 feet of the main traveled part of the highway for the free passage of other vehicles, in violation of the provisions of Section 8215, Code of 1942; and (3) that he had parked the automobile which he was driving at a place and in a manner that he knew, or should have known, to be dangerous to the deceased and other persons traveling on the highway. And the plaintiffs charged that the negligence of Frank Wiley, Jr., was in law imputed to his parents, B. F. Wiley and Mrs. Lynn Wiley, for the reason that they had signed the application of the said Frank Wiley, Jr., for a driver's license, under the provisions of Section 8096, Code of 1942.

The plaintiffs asked for actual and punitive damages against all of the defendants.

Mrs. Rosamond and her husband in their answer denied that Mrs. Rosamond was negligent in permitting Myra Morice Belk to ride on the fender of the automobile; and they denied that Mrs. Rosamond was negligent in the operation of the automobile, or that she was driving at an excessive rate of speed at the time of the accident; and in their answer they alleged that the accident was due to the fact that Mrs. Rosamond was temporarily blinded by the reflected light of the sun, when the rays of the sun suddenly struck the hood of her automobile and flashed into her eyes as she was driving westwardly over the bridge.

The Wileys in their answer admitted that they had signed Frank Wiley's application for a driver's license, but denied that they had agreed to become responsible for any damages caused by the negligence of Frank Wiley. They admitted that the automobile owned by B. F. Wiley was parked temporarily by Frank Wiley, Jr., on the bridge about 150 feet from the west end of the bridge, as alleged in the plaintiffs' declaration; but they denied that it was negligently parked on the bridge in violation of the statutes; and they alleged that the car was parked close to the south railing of the bridge and that ample space was left for the passage of other motor vehicles using the highway; and they denied that the parking of the automobile on the south side of the bridge under the circumstances constituted negligence on the part of Frank Wiley, Jr., or that they were in any way liable for the injuries sustained by the said Myra Morice Belk on the occasion referred to.

There is very little conflict in the testimony of the witnesses. The record shows that the child, Myra Morice Belk, was visiting in the home of G. M. Rosamond and his wife on the day of the fatal accident. The Rosamond home was situated on State Highway No. 35, a short distance east of the Big Black river bridge. Mrs. Rosamond had three small children and a daughter, Baby Linda, who was nine years of age. She also had a stepdaughter, Linda Rosamond, who was several years older then Baby Linda. About 3:00 o'clock in the afternoon Mrs. Rosamond decided to drive to Vaiden for the purpose of purchasing a bag of chicken feed. All of the children wished to accompany her on the trip. Mrs. Rosamond placed her three small children on the back seat of the Pontiac automobile. The older girls requested that they be permitted to ride on the front fenders of the automobile, and Mrs. Rosamond consented that they might do so. Myra Morice Belk and Baby Linda seated themselves on the left front fender, and Mrs. Rosamond's stepdaughter, Linda, and Mary Jean Rucker, who was also visiting in the Rosamond home, seated themselves on the right front fender. Mrs. Rosamond testified that she drove the automobile carefully, and that she did not think that it was dangerous for her to drive the automobile with the four children sitting on the front fenders. She testified that she drove at a rate of speed of about 15 miles an hour until she came to the Big Black river bridge and that she then reduced her speed to about 10 or 12 miles an hour. But as she was proceeding westwardly over the bridge, she left the north travel lane of the bridge and ran into the Wiley car which was parked on the south side of the bridge about 150 feet from the west end of the bridge. As a result of the impact with the Wiley car the children who were riding on the front fenders of Mrs. Rosamond's car were thrown from the Rosamond car onto the bridge, and Myra Morice Belk suffered such great bodily injuries that she died as a result of the injuries about one hour later before reaching a hospital at Winona.

The proof showed that Frank Wiley, Jr., who was sixteen years of age, had parked the Wiley automobile on the bridge about 4:30 o'clock a. m., and that the automobile had remained on the bridge for a period of ten or eleven hours before the fatal accident occurred.

At the conclusion of the plaintiffs' testimony, a motion was made for a directed verdict as to the defendant, G. M. Rosamond, and that motion was sustained by the court. A motion was also made for a directed verdict as to the defendants, B. F. Wiley, Frank Wiley, Jr., and Mrs. Lynn Wiley. But that motion was overruled. A motion was made on behalf of all of the defendants for a directed verdict as to the plaintiffs' claim for punitive damages; and that motion was sustained. At the conclusion of all of the testimony the case was submitted to the jury on the question of the liability of Mrs. Rosamond and the Wileys for actual damages, and the jury returned a verdict for the defendants. The plaintiffs filed a motion for a new trial which was overruled by the court, and a judgment was entered for the defendants. From that judgment the plaintiffs prosecute this appeal.

The appellants' attorneys in their assignment of errors allege that the court erred in granting each of the instructions granted to the defendants and in refusing to grant two instructions requested by the plaintiffs, and that the court erred in overruling the plaintiffs' motion for a new trial. And the appellants' attorneys in their brief argue four points on this appeal, viz.: (1) That the court erred in sustaining the motion of all of the defendants for a directed verdict as to punitive damages; (2) that the court erred in refusing plaintiffs' instruction No. 12; (3) that the verdict is contrary to the law and the evidence; and (4) that the court erred in overruling ...