Clarke v. Hughes

• Decision Date: 11 February 1924
• Docket Number: 23492
• Citation: 134 Miss. 377,99 So. 6
• Court: Mississippi Supreme Court
• Parties: CLARKE v. HUGHES

99 So. 6

134 Miss. 377

CLARKE v. HUGHES

No. 23492

Supreme Court of Mississippi

February 11, 1924

Division B

APPEAL from circuit court of Harrison county, HON. D. M. GRAHAM Judge.

Action by Mrs. Aimee Clarke against Mrs. W. L. Hughes. From a judgment for less than prayed for, plaintiff appeals. Affirmed in part, and reversed and remanded in part.

Cause reversed and remanded.

E. J Bowers, for appellant.

Appellant sued defendant in tort for being negligently run over and injured by the automobile of defendant, driven by defendant. The proof disclosed that appellant was struck by an automobile driven by appellee, on the streets of Biloxi while appellee was driving on the left, or wrong side of the street. Defendant asked and obtained a charge as to the contributory negligence of plaintiff, which is assigned as error, because no contributory negligence was shown, and because the court had already charged the jury that plaintiff was not required to look in the direction from which the automobile was coming.

Plaintiff testified, and was uncontradicted, that she looked to the East before stopping into the street and that she was struck just as she stepped into the street. Surely she is not chargeable with negligence in failing to look to the West when the city ordinance and common sense, indeed the law of the road--"Keep to the right"--prohibited any cars or vehicles from coming in that direction. This appeal being prosecuted solely on the quantum of the verdict it is apparent that the erroneous charge greatly affected same.

The automobile of defendant lay on the chest of plaintiff until taken off by the bystanders. Her hand was broken and she was seriously injured on the chest and sides. To say that three hundred and seventy-five dollars is sufficient to compensate such injuries is absurd. We respectfully insist that the case should be reversed and remanded only as to the amount of the damages suffered.

Carl Marshall and W. L. Guice, for appellee.

This court has decided time and time again that the jury, where any contributory negligence is shown on the part of the plaintiff, has the right to pass on this question along with the right to pass on general negligence presented by the plaintiff. This right is expressly given by the statute, and if there were in this case any facts that a jury could consider with reference to others as being an act of contributory negligence on the part of Mrs. Clarke, not only did the jury have a right to find that she was guilty of said negligence, but having found and expressed their finding by their verdict, we do not believe that this court, or the circuit court would have any right to interfere with this finding, as they, the jury, are the sole judges of the facts.

In the case at bar we have the appellant standing on a busy street in one of the busiest towns in Mississippi, forty or fifty feet from the corner which pedestrians generally use in passing across the street, with numberless automobiles as well as street cars passing up and down the street, yet thinking so little of her personal safety as to deliberately step out into the street in front of an automobile, which according to the testimony of the witnesses for the defendant, was only three feet from there at this time. Mrs. Hughes, the appellee, was certainly entitled to the jury's consideration of...