Coca Cola Bottling Works of Greenwood v. Hand

• Decision Date: 30 October 1939
• Docket Number: 33844
• Citation: 191 So. 674,186 Miss. 893
• Court: Mississippi Supreme Court
• Parties: COCA COLA BOTTLING WORKS OF GREENWOOD et al. v. HAND

191 So. 674

186 Miss. 893

COCA COLA BOTTLING WORKS OF GREENWOOD et al. v. HAND

No. 33844

Supreme Court of Mississippi, Division B

October 30, 1939

Suggestion Of Error Overruled November 27, 1939.

APPEAL from the circuit court of Leflore county HON.S. F. DAVIS Judge.

Action by W. D. Hand against the Coca Cola Bottling Works of Greenwood and others for injuries suffered in automobile accident. From a judgment on a verdict for plaintiff defendants appeal. Reversed and rendered.

Reversed and judgment here for appellants.

Osborn & Lott and Harry Diamond, of Greenwood, for appellants.

The first assignment of error relates to the refusal of the court below, at the close of the evidence, to give the jury a peremptory instruction to find for the appellants.

Chapter 200 of the Mississippi Laws of 1938, being the new Motor Vehicle Act, did not go into effect until after the date of this accident. The statutes applicable to the case at bar are those in effect previous to the adoption of the Act of 1938.

The question as to which car had the right-of-way at the intersection herein is governed by Section 5571, Mississippi Code of 1930.

There is no stop sign of any kind at the intersection of the Shellmound gravel road with Highway 49-E, and therefore there is no statute giving the right-of-way to cars traveling on either of the two roads. Under these circumstances, it is settled by numerous decisions of this court that the car first approaching and entering the intersection had the right-of-way.

Even if appellee's contention that the truck got into the intersection be conceded, it, nevertheless, clearly appears from the appellee's own testimony and the decisions of this court that the truck had the right-of-way and that its act in entering the intersection was not negligence. We submit further that the evidence clearly demonstrates that the accident and resulting injury to appellee was due, first to appellee's refusal, until it was too late, to slow up and yield the right-of-way to the car which had it; and, second, to appellee's inability to stop or control his own car when he did finally, 144 or 115 feet from the intersection, decide not to "hog" the right-of-way. Appellee's inability to stop or control his car was, of course, due to a combination of excessive speed and defective brakes.

Myers v. Tims, 161 Miss. 872, 138 So. 578; Gough v. Harrington et ux., 163 Miss. 393, 141 So. 280; Whatley v. Boolas, 180 Miss. 372, 177 So. 1.

The rule announced in all of the decisions where accidents have occurred at a time when trains were being operated at a rate of speed in excess of the statutory limit, and which required that the rate of speed must have been the proximate cause of the injuries complained of, applies in the decision of the question of liability in the case at bar.

Whatley v. Boolas, 180 Miss. 372, 177 So. 1; Kramer Service, Inc. v. Wilkins, (Miss.), 186 So. 625; Thompson v. Miss. Cent. R. Co., 175 Miss. 547, 166 So. 353.

The emergency was caused by appellee's excessive speed, and the law is well settled in all jurisdictions that a party cannot urge an emergency or sudden peril as an excuse for a mistake of judgment where the emergency or sudden peril was of his own making.

6 A.L.R. 680; 27 A.L.R. 1197; 79 A.L.R. 1277; Vann v. Tankersly, 164 Miss. 748, 145 So. 642; Trico Coffee Co. v. Clemens, 168 Miss. 748, 151 So. 175.

This court has announced in a long line of unbroken decisions that it is the duty of the driver of a motor vehicle on a public highway to keep his motor vehicle under control at all times and to drive at a rate of speed which will enable him to avoid injury to pedestrians and other vehicles who should come under his observation.

Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Aycock v. Burnett, 157 Miss. 510, 128 So. 100; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Daniel v. Livingstone, 168 Miss. 311, 150 So. 662; Terry et al. v. Smylie, 161 Miss. 31, 133 So. 662.

If the appellants in the case at bar are held to be liable to the appellee for the natural results of appellee's own speed and inability to control his car, then it almost means that the driver of any car so unfortunate as to be present when a speeding motorist overturns is liable for the resulting injuries to the speeding motorist.

The appellee neither asked for or obtained any instructions as to the effect on liability of the truck getting on the concrete at the intersection, if it did get there. All of appellee's instructions presuppose that the truck stopped on the gravel road before entering the intersection and never got in the intersection. They are all directed to the proposition that, even though the truck did not get in the intersection, the appellants are liable if they so drove their truck on the gravel road as to lead appellee to believe that they were going to get there.

It is elementary law that it is error to grant an instruction that has no substantial support in the evidence; and that where such instruction is given and the evidence is sufficient to sustain a contrary verdict, the case will be reversed on that error alone.

Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288.

Even conceding for the sake of this argument only that the evidence does not conclusively show that plaintiff was driving imprudently and unreasonably, but merely raises an issue of that point, it is still error for the court to assume and state in the instruction a conclusion with reference thereto.

Jackson Light & Traction Co. v. Taylor, 112 Miss. 60, 72 So. 856.

We have made a careful search of the authorities, and we are unable to find any mention of the "appeared to exist" emergency doctrine about which the court instructed this jury. If an emergency existed, then the emergency doctrine might be applicable; if no emergency existed, then the emergency doctrine could not be applicable. The law does not deal in speculation.

An instruction should tell the jury what the law is and leave the jury to find the facts.

City of Montgomery v. Bradley & Edwards, 48 So. 809, 159 Ala. 230; City of Albany v. Black, 214 Ala. 359, 108 So. 49; American Digest System, Trials key number 199.

There is an irreconcilable conflict between two instructions given for appellee and two of those given for appellants.

Kansas City M. & B. R. Co. v. Lilly et al., 8 So. 644; May v. Culpepper, 177 Miss. 811, 172 So. 336; L. & N. Railroad Co. v. Cuevas, 162 Miss. 521; Chapman v. Copeland, 55 Miss. 476, 478; Branson, Inst. to Juries (2 Ed.), 89; I. C. R. R. Co. v. McGowan, 92 Miss. 603, 46 So. 55; Hinds v. Lockhart, 105. So. 449; Jefferson Standard Life Insurance Co. v. Jefcoats, 164 Miss. 659, 143 So. 842; Jackson v. Leggett, (Miss.), 189 So. 180.

W. H. Montjoy and Alfred Stoner, both of Greenwood, for appellee.

The statute required that the driver of the coca cola truck be exceptionally careful.

Code 1930, Sec. 5571.

We submit that it is self-evident that the driver of the coca cola truck did not regard the law. He did not regard the traffic that was then upon the highway 49-E, but on the contrary, suddenly burst into rapid speed and recklessly misled and menaced the lives of those then traveling on the highway.

Care is required of each driver and under our comparative negligence statute, if there is any neglect on the part of the defendant, no matter if the plaintiff is partially negligent, then the defendant is liable.

Myers v. Tims, 161 Miss. 872, 138 So. 578.

The proof shows that the dodging of the truck was the direct cause of the injury. In a very recent Mississippi case, our court in a decision relative to proximate cause wherein the blinding lights of a truck caused the driver of an automobile to run over pedestrians who at that time walked along the shoulder of the concrete highway, held that the blinding lights of the truck was the proximate cause of the death of the pedestrian, even though the driver of the automobile whose eyes were blinded by the lights of the truck was also negligent in maintaining a rather high rate of speed during the time that his eyes were blinded.

Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; 45 C. J. 879 et seq.

We of course realize that there was no posted stop sign to deter the speed of either party. However, we submit that the statute which required exceptional caution when traversing a steep ascent and when turning a sharp curve, was tantamount to the warning of a stop sign.

McNulty v. Joseph Horne Company (Pa.), 148 A. 105; Madden v. Peart (Wis.), 229 N.W. 57; Consolidated Coach Corporation v. Hopkins (Ky.), 37 S.W.2d 1; Jaffe v. Spata (N. J.), 157 A. 135; Bennett v. Hardy (Cal.), 291 P. 903.

In a case similar to the case at bar decided by the Supreme Court of Rhode Island, the cars were going in opposite directions and another car came out unexpectedly from behind one of the cars, causing plaintiff to pull off the highway into a ditch and to run into a pole. The defendant claimed that the plaintiff should have stopped instead of running into a pole. The court held that the question was for the jury.

Henderson v. Diamond, 110 A. 388; Cartensen v. Thomsen (Iowa), 245 N.W. 734; Mayer v. Mellette (Ind.), 114 N.E. 241; Rhodes v. Fullilove, 161 Miss. 41; Priestley v. Hays, 145 Miss. 645, 112 So. 788.

Of course, in every case of negligence, the circumstances under which an actor is placed, what an ordinarily prudent man would do or fail to do under such circumstances must always be considered in connection with negligence.

Mississippi Power & Light v. Sumner Gin, 156 Miss. 830, 127 So. 284; Goff v. Sinclair Refining Co. (La.), 162 So. 452; Gouch v. Harrington, 163 Miss. 393, 141 So. 280.

Where two approach an intersection and one signals to the other that he will pass in...