Billups Petroleum Co. v. Entrekin

• Decision Date: 12 June 1950
• Docket Number: No. 37529,37529
• Citation: 209 Miss. 302,46 So.2d 781
• Parties: BILLUPS PETROLEUM CO. v. ENTREKIN.
• Court: Mississippi Supreme Court

Page 781

46 So.2d 781

209 Miss. 302

BILLUPS PETROLEUM CO. v. ENTREKIN.

No. 37529.

Supreme Court of Mississippi, in Banc.

June 12, 1950.

Means Johnston, Greenwood, White & Morse, Gulfport, Merle Palmer, Pascagoula, W. H. Montjoy, Greenwood, for appellant.

J. D. Stennis, Jr., Biloxi, Carl Marshall, Gulfport, Mitchell & Hill, Pascagoula, for appellee.

ALEXANDER, Justice.

Appellee, an employee of appellant, brought suit against the latter for personal injuries suffered when an automobile driven along the highway adjacent to the filling station at which he worked skidded into the station. From a verdict and judgment for $35,000, the company appeals.

We examine first the appellant's assignments of error directed to the refusal of its requested peremptory instruction and to the insufficiency of evidence to sustain the verdict.

The company operates a filling station along the southern side of Highway 90 in the town of Ocean Springs. Two months prior to the accident it had covered the drivein area with five truckloads of loose, washed gravel. Some of this gravel was knocked or carried by the egress of cars and trucks onto the paved surface of the highway. It was an established practice of the company periodically to sweep or drag the highway and remove these deposits with a device it had fashioned. Plaintiff worked at night and being alone on duty was not called upon to, and did not, undertake this operation. The highway was cleaned about 4 P.M. on the afternoon of the accident which happened about midnight following.

The highway approaching the station from the west end is situated upon a straight section thereof east of a curve which in traveling east turns to the right. One Harrison, driving east about 11:45 P.M. at a speed of 30 to 40 miles per hour, struck a depression in the highway about 75 to 80 feet west of the entrance to the station. This depression--and there are indications that there were more than one--was caused by faulty repair work by the town in filling excavations after laying of pipe.

According to Harrison he hit this depression which did not extend the full width of the highway, and the back end of his car 'bounced and slipped to the left, and I cut my wheels to the right to straighten my car back up and before I could straighten it back up I hit the loose gravel on the highway'. The gravel was 'even with the entrance of' the station area. Further he stated 'When I hit the gravel on the highway it turned my wheel hard to the left and my back end switched to the right and went off the pavement and hit the loose gravel in the Billups driveway and went on up and hit this car'. The point at which it left the pavement was opposite the west entrance. He stated that this threw his car out of control. On the crucial point of causation he stated: 'Before I got my wheels straightened out I hit the loose gravel * * * I felt the steering wheel jerk in my hand to the left'. At that time his car had 'stopped skidding, my wheels were not straight, my car was about in line'. He skidded sideways into the station striking plaintiff who was at the rear of a car being serviced and at a point about 15 feet from the edge of the pavement pinning him against the customer's car and causing serious personal injuries hereinafter detailed. He was not allowed to express an opinion whether he could have straightened out his car had it not been for the loose gravel. However, in answer to the inquiry, 'What caused you to slide to the right?' he answered, 'The gravel.' The same answer was made to the question, 'What was it that caused you, if you know, to skid into the station?' When he first hit the loose gravel and felt its effect upon his steering wheel he was entirely on the highway. On cross-examination he was asked: 'You don't know if you would have been able to stop if the gravel had not been there?' and he answered: 'I don't know for sure.'

The car being serviced was variously estimated to have been knocked from 15 to 100 feet eastward and was then stopped by an occupant's application of the brakes. The Harrison car came to rest about 50 to 60 feet east of the point of impact and partially blocking the highway with its left front wheel. It had been raining during the afternoon and was 'misting' at the time of the accident. The highway is about 21 feet wide and of concrete. The distance from the right or south edge of the pavement was about 21 feet 7 inches from the service pumps although the pavement did not cover the entire width of the right of way.

There was some testimony elicited to show that the surfacing of station areas with washed gravel was a conventional method and there was other testimony to the contrary. A former manager of said station was permitted to state in answer to an inquiry whether such gravel upon the highway was dangerous, 'I figured it was.' This was elicited in connection with his asserted practice of sweeping the pavement during the day. The extent of the gravel deposits was estimated to extend from time to time 2 to 3 feet onto the south side of the pavement and to be from 1 to 2 inches thick. There is no conflict that a deposit was present at the time of the accident, although estimates of its longitudinal extent varied from 40 to 150 feet. There was a bit of conflict in the testimony whether the Harrison car began skidding first before it struck gravel, but it is sufficiently clear that the gravel did not extend to the original cause which was the depression in the highway. When it skidded into the station area there were skid marks within the gravel deposits.

The witness Williams, a city police officer, testified that 'when he (Harrison) came back (out of the original skidding) it skided on the gravel and he was headed back east when he hit the other car'. He was also permitted, over objection, to state that the gravel was of a quantity and quality such as would cause a motorist to lose control and go into a skid out of control. Of this, more later.

Suit was first instituted by plaintiff against appellant and Harrison. The gravamen of this action was the intoxication and negligence of Harrison, his excessive speed, and the wet and slick condition of the highway. Appellant's negligence was charged to his use of gravel upon the station area. After a demurrer had been sustained plaintiff took a non-suit. The present action was against appellant alone and Harrison became plaintiff's chief witness. For reasons no doubt satisfactory to plaintiff the town of Ocean Springs, whose negligence was the original cause of the accident, was not made a party in either cause. The present action for the first time predicates liability upon the gravel upon the highway.

We are now brought to the core of the case. The negligence charged is the defendant's alleged failure to use reasonable care to furnish the plaintiff a reasonably safe place of work. First, to eliminate certain factors that are deemed immaterial. It is not in point that the loose gravel was dragged or carried onto the highway by patrons of appellant; compare National Refining Co. v. Batte, 135 Miss. 819, 100 So. 388, 35 A.L.R. 91; or that Harrison or the town of Ocean Springs were negligent; or that the injury followed a unique pattern of accomplishment. The primary inquiry is whether the appellant was negligent in constructing his driveways in the manner indicated, and next of paramount import, was the presence of gravel upon the highway, if the result of a failure of duty to plaintiff, a proximate contributing cause--meaning a substantial factor--of plaintiff's injury?

Had the action been brought against the town of Ocean Springs the chain of causation would find its first link at the depression in the highway. Tracing the successive events would be an interesting and relevant exercise and would have involved a consideration whether the presence of gravel was a concurring or superseding cause. But when we approach the problem from the angle of defendant's responsibility the preceding events are to be examined under the lends of reasonable foreseeability in which the extraordinary character of succeeding events would come into view.

We cross the first bridge on our course of examination by holding that it was for the jury to say whether the use of the loose, washed gravel adjacent to the highway in the light of the proven and known experience with its properties of ready mobility and displacement, amounted to a failure of the defendant to use reasonable care to furnish a reasonably safe place of work. This decided, we approach the next bridge whereon it must be examined whether the manner and eccentric design of events whereby this negligence matured into injury was, or need have been, foreseeable.

Illinois Central Railroad Co. v. Bloodworth et al., 166 Miss. 602, 145 So. 333, 336, is leaned upon heavily by the appellant. Here, too, there was a negligent and reckless automobilist; here, also, a skidding upon the highway, to-wit, a bridge. The acquittal of the railroad company was bottomed upon the sole negligence of the driver, and upon the point whether the condition of the highway (bridge) was a substantial factor, this Court said: 'Considering the construction and maintenance of the bridge, with marked segregation of the walkway from the driveway, with accumulations of dirt, whether loose or packed we do not know, we dare say, with rare exception, there was as safe provision for the protection of pedestrians as can be found on any highway or street within the borders of the state.'

If the presence of gravel was a causa sine qua non it would be a substantial factor in the ultimate injury. We would not say that foreseeability must include events which are bizarre, or so unique as to be without the contemplation of one reasonably prudent. But here the precedent events, complicated though they were, stemmed from a use of the highway by a passing motorist. Highway 90 is alleged to be a dominant travel artery...