Brown v. McCoy

• Decision Date: 23 August 1978
• Docket Number: No. 50443,50443
• Citation: Brown v. McCoy, 362 So.2d 186 (Miss. 1978)
• Parties: Eugene BROWN et al. v. Billy M. McCOY.
• Court: Mississippi Supreme Court

Page 186

362 So.2d 186

Eugene BROWN et al. v. Billy M. McCOY.

No. 50443.

Supreme Court of Mississippi.

Aug. 23, 1978.

Donald Franks, Booneville, for appellant.

Mitchell, Rogers, Eskridge, Voge & Clayton, W. P. Mitchell, Tupelo, for appellees.

Before PATTERSON, C. J., BROOM and LEE, JJ., and HESTER, Commissioner.

JAMES D. HESTER, Commissioner for the Court: ¹

Eugene Brown, et al., filed suit in the Circuit Court of Prentiss County against Billy M. McCoy for damages as a result of the traffic death of an eight-year-old child. After trial, the jury returned a verdict for the defendant and the plaintiffs appeal, assigning as errors:

(1) The trial court erred in refusing Instructions P-3, P-5 and P-6 requested by appellants.

(2) The Court erred in granting Instructions D-3, D-4 and D-6 requested by appellee.

U. S. Highway No. 45 runs in a north-south direction in the Town of Baldwyn and on the east side of said highway is located Baldwyn Elementary School. About 2:30 p. m., January 13, 1976, the eight-year-old child had crossed the highway to the west side and was returning to the east side when he was struck and killed by an automobile driven by appellee north on said highway. Appellee testified that he was driving the vehicle from fifteen to twenty miles per hour.

Did the trial court err in refusing Instructions P-3, P-5 and P-6 requested by appellants?

The requested instructions were to the effect that it is negligence for a person to operate a motor vehicle in excess of ten (10) miles per hour while passing a public school and that if a speed in excess of ten (10) miles per hour proximately contributed to the death of the child, the jury should return a verdict for the plaintiffs.

Mississippi Code Annotated section 63-3-515 (1972), the substance of which was originally codified in section 5776 of Hemingway's Code of 1917, provides as follows:

SPECIAL SPEED REGULATIONS NEAR PUBLIC SCHOOLS AND CHURCHES AND UPON LEVEES AND CAUSEWAYS.

No person running or operating, or causing to be run or operated a motor vehicle, shall pass a public school, on school days, when school is held, between the hours of eight o'clock ante meridian and four o'clock post meridian, or pass a building of public worship on the Sabbath Day during the usual hours of service, or cross a levee or causeway where the traveled portion of the roadbed is less than sixteen feet wide, At a greater rate of speed than ten miles per hour. (Emphasis added).

The regulation of vehicular traffic, including speed restrictions, is peculiarly a function of the legislature, exercised under its police powers. This power to regulate motor vehicle speed has been delegated by the legislature in certain instances and under prescribed circumstances to one or more agencies of the state and to local political subdivisions.

The first Uniform Highway Traffic Regulation Act was adopted in Mississippi in 1938 (Chapter 200, Laws of 1938). The speed restrictions imposed by this enactment were codified as Section 8176, Code of 1942, and prima facie speed limits were established therein. Authority was delegated to the State Highway Commission to reduce the maximum speed limits thus fixed "upon the basis of an engineering and traffic investigation" when it was determined "that any speed hereinbefore set forth is greater than is reasonable or safe under the conditions found to exist." Such reduced speed limit thus fixed by the Commission became "effective when appropriate signs giving notice thereof are erected . . . ." Significantly, there was not included the authority to Increase the maximum speed limits fixed by the legislature. Subsequently, Chapter 200, Laws of 1938, was amended by Chapter 442, Laws of 1970, so as to grant unto the Commission the authority to increase maximum speeds on any portion of the Interstate Highway System.

The same Uniform Highway Traffic Regulation Act delegated to local authorities, within their respective jurisdictions, limited authority to Reduce maximum speeds "fixed by this act." Again, no power or authority was delegated to increase speed limits. (See Chapter 200, Laws, 1938, codified as section 8177, Code of 1942, and amendments thereto, Chapter 328, Laws, 1948, and Chapter 397, Laws, 1956).

A minimum speed regulation, codified as section 8178, Code of 1942, was also included in Chapter 200, Laws of 1938. This provision had limited application. The minimum speed of thirty miles per hour applied only "on federal designated highways where no hazard exists," and the Act further provided:

(E)xception to this requirement shall be recognized when reduced speed is necessary for safe operation, or when a vehicle . . . is necessarily, or In compliance with law . . . proceeding at a reduced speed. . . . (Emphasis added)

It is not necessary to decide whether a public school situated adjacent to U. S. Highway 45 constitutes a place where a "hazard exists" as contemplated by Chapter 200, Laws of 1938. Suffice it to say the minimum speed of thirty miles per hour fixed for vehicular traffic on federally designated highways is subject to two exceptions which "shall be recognized," namely, (1) "when reduced speed is necessary for safe operation," and (2) "when a vehicle . . . is . . ., in compliance with law . . ., proceeding at a reduced speed . . . ." Driving on a federally designated highway at less than the minimum speed fixed by the statute is not only permitted when necessary for safe operation, but is specifically mandated by section 63-3-515, Mississippi Code Annotated (1972), when a driver is passing a public school during regular school hours, as was the case here.

Appellee has presented an exhaustive argument in support of his contention that Mississippi Code Annotated section 63-3-515 (1972), despite its successive re-codifications since its initial enactment in 1917, has been repealed by implication, more specifically by that provision of section 51, Chapter 200, Laws of 1938, which provides in part that:

No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing.

We fail to find any conflict in the two statutes. Instead of being repugnant each to the other, they can be harmonized and express a clear legislative intent to preserve the provisions of section 63-3-515. In addition to its survival from the infant days of automobile travel, it has withstood significant and comprehensive remodelings of this state's traffic laws, and its purpose is still as salient as ever. Repeal by implication has never been favored judicially. Rather, repeal is limited to situations where later statutes are plainly, unavoidably, and irreconcilably repugnant to an earlier enactment. In the relatively recent case of Jackson Municipal Airport Authority v. Shivers, 206...