Clark v. Gilmore

• Decision Date: 10 March 1952
• Docket Number: No. 38304,38304
• Citation: 213 Miss. 590,57 So.2d 328
• Parties: CLARK v. GILMORE.
• Court: Mississippi Supreme Court

Page 328

57 So.2d 328

213 Miss. 590

CLARK v. GILMORE.

No. 38304.

Supreme Court of Mississippi.

March 10, 1952.

Watkins & Eager, Jackson, for appellants.

Barnett, Jones & Montgomery, Jackson, for appellee.

LEE, Justice.

W. H. Gilmore sued C. E. and H. B. Clark, doing business as Clark Brothers Construction Company, to recover damages for personal injuries alleged to have been sustained by him as a proximate result of the negligent operation of a truck. There was a jury verdict for $16,000; and from the judgment entered thereon, the Clarks appeal.

Gilmore died on December 16, 1950, after rendition of the judgment, and the cause was revived in the name of Mrs. W. H. Gilmore, Administratrix of his Estate.

The declaration charged that the plaintiff was run over and injured by a truck of the defendants. The alleged acts of negligence consisted of backing the truck without warning, without keeping a reasonable lookout, at an excessive rate of speed under the circumstances, and without having the truck under free, easy and reasonable control.

The answer of the defendants averred that the work was being done in the usual and customary manner, with which the plaintiff was familiar; that he voluntarily put himself in a place of danger and assumed the risks thereof; and that the defendants were guilty of no negligence which proximately caused or contributed to the alleged injuries.

Defendants had a contract with the City of Jackson to pave South West Street and the adjacent sidewalks. Gilmore was a construction inspector for the City. The pavement was 56 feet wide and had been completed several weeks previously. On January 24, 1949, defendants' crew returned to lay the sidewalks. Gilmore had discovered that it was necessary to lower the grade slightly, and he directed several of the men to do that work. Concrete could not be poured until the grade was ready. Defendants placed their platform and concrete mixer on the west side of the street, about 150 feet apart, and within about 2 feet of the curb. At the platform, employees took the cement out of sacks and dumped the contents in trucks. Gilmore checked those operations to see that the proper quantity was used. When a truck had obtained its load, it was the custom for the driver to back it south, along and within about 2 feet of the curb, to the concrete mixer.

George Roberts drove the first truck to the platform early that morning. Gilmore checked it and started back toward the place where the men were working on the grade. When he was about half of the distance between the platform and the concrete mixer, one of the men inquired as to the proper way to fix a certain joint. Gilmore stopped and proceeded to give the necessary instruction. While doing this, he was standing several feet out in the street, facing the workmen to the west. He had left the Roberts truck at the platform about ten minutes before, and had been instructing the workmen for about five minutes. In the meantime, Roberts got his load, and started to backing the truck south toward the concrete mixer at a speed of 5 to 10 miles an hour, without looking behind or blowing the horn. No warning of any kind was given, except when the truck was almost upon Gilmore, several workmen hollered to the driver to 'hold the truck', and one hollered to Gilmore that the truck was about to hit him. Gilmore testified that he did not see the truck and that he did not hear anyone call to the driver or to him. He further accounted for his position by saying that, while the motor of the concrete mixer was running, the operator was temporarily absent; that no concrete could be poured until the grade had been completed; and that he was not expecting the truck to come back while the operator of the mixer was not on the job.

J. L. Clark testified for the defendants that the method then being employed had been used throughout the project; that to the best of his knowledge from observing other contractors, it was a standard method; and that Gilmore had observed the operation on many occasions.

It was undisputed that Gilmore was an inspector on this project for several weeks, and that he had observed the way and manner in which defendants delivered the materials from the platform to the concrete mixer. It was further undisputed that, on this occasion, the truck had a good horn; that Roberts, while backing the truck, watched the curb on his left, trying to keep it in about 2 feet of the curb; that he did not look back at any time; that he did not blow his horn; and that no warning of the approach of the truck was given until immediately before its collision with Gilmore. Neither Gilmore nor Roberts, according to their evidence, heard the several outcries. Obviously if Roberts had looked back, he would have seen Gilmore; and likewise, if Gilmore had looked to his right, he would have seen the approaching truck. But Gilmore was not looking toward the backing truck, and Roberts was not looking where he was backing.

Under the circumstances, did the trial court err in submitting the cause to a jury, and should appellants' motion for a directed verdict have been sustained?

Appellants contend, and appellee concedes that, under Section 8148(d), Code 1942, the ordinary rules of the road did not apply to the operation of the truck on the occasion in question. Consequently the salutary rules as to keeping lookout and as to warnings and signals in backing motor vehicles on highways found in 60 C.J.S., Motor Vehicles, Sec. 302, and 5 Am.Jur., Automobiles, pars. 330 and 331, have little application.

Appellee contends that the defendants were under a common law duty to give warning of the intention to back the truck, when any reasonable necessity therefor existed; and that a violation of such duty constituted negligence so long as reasonable prudence and regard for the safety of others required them, as reasonably prudent persons, to give warning and to keep a lookout for those who might reasonably be injured.

In 65 C.J.S., Negligence, Sec. 1(2) it is said: 'Of the numerous definitions of 'negligence,' among the best has been declared to be 'the failure to observe, for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury."

See also 38 Am.Jur., Negligence, par. 2, p. 643, where it is said: '* * * actionable negligence is the failure of one owing a duty to another to do what a reasonable and prudent person would ordinarily have done under the circumstances, or doing what such a person would not have done, which omission or commission is the proximate cause of injury to the other.'

In the case of Illinois Central Railroad Co. v. Mann, 141 Miss. 778, 106 So. 7, 8, the approach of the train was not signaled either by bell or whistle, but the crossing was neither a highway nor a street, although frequently used by pedestrians and vehicles, and this fact was known to the trainmen. Under those circumstances, this Court held that it was for the jury to say whether or not the operatives of the train should have signaled its approach to the crossing. It was there said that at common law 'if by reason of peculiar or extraordinary circumstances surrounding a crossing and known to the...