Coker v. Five-Two Taxi Service, FIVE-TWO

• Citation: 52 So.2d 356,211 Miss. 820
• Decision Date: 07 May 1951
• Docket Number: FIVE-TWO,No. 37919,37919
• Parties: COKER v.TAXI SERVICE, Inc.
• Court: United States State Supreme Court of Mississippi

Page 356

52 So.2d 356

211 Miss. 820

COKER v. FIVE-TWO TAXI SERVICE, Inc.

No. 37919.

Supreme Court of Mississippi, Division A.

May 7, 1951.

Merle F. Palmer, Pascagoula, for appellant.

Wallace, Greaves & Wallace, Gulfport, for appellee.

ARRINGTON, Commissioner.

The appellant, Edward W. Coker, brought suit against the appellee, Five-Two Taxi Service, Inc., for recovery of damages for personal injuries received as a result of the negligence of the appellee. At the conclusion of the appellant's evidence, the trial court sustained a motion by the appellee to exclude the evidence and for a directed verdict. Upon the sustaining of this motion, judgment was entered for the appellee, from which judgment, this appeal is taken. The rule is well settled and has been stated many times by this court that upon a motion for a directed verdict or a peremptory instruction that all the facts expressly testified to and all the inferences necessarily and logically to be deduced therefrom are to be taken as true in favor of the party against whom the motion is asked. Alexander v. Zeigler, 84 Miss. 560, 36 So. 536; Dean v. Brannon, 139 Miss. 312, 104 So. 173; Thomas v. Mississippi Products Company, 208 Miss. 506, 44 So.2d 556, and authorities cited therein.

The appellant, who was 41 years of age, testified to the following facts: That on January 13, 1949 he was riding a bicycle in a southerly direction on South Pascagoula Street in the City of Pascagoula; that he proceeding at an ordinary speed and while proceeding in said direction near the intersection with Columbus Drive and St. James Street, which streets intersect Pascagoula Street, he heard a noise behind him; that he looked back over his left shoulder and saw the appellant's taxicab fifty feet back and traveling at a rate of speed estimated to be between 45 and 55 miles per hour; that the appellant saw immediately in front of him a van type truck parked parallel against the curb on his right side; that due to the excessive speed of the taxicab, he considered himself in danger, afraid that he would be pinned or crushed by the taxicab against the aforesaid van type truck; and in order to escape this dangerous position (using his language), 'by the time I turned around I was almost on that van type truck ahead of me, and I threw my bicycle to the right, I was afraid the taxi would jam me between the cab and the truck and I flung my bicycle to the right to get off of it'; that as a result, his right leg was seriously and permanently injured. The appellant was the only witness who testified to these facts. Two doctors testified to the extent of his injuries. The maximum speed limit in the City of Pascagoula, according to an ordinance introduced, was thirty miles per hour.

The appellee, on his motion for a directed verdict, assigned the following grounds: 'First: There is no credible or believable evidence that the defendant's taxi-cab was being driven at excessive speed. Second: The evidence fails to show that defendant's driver was guilty of any negligence which caused or contributed to the plaintiff's injury. Third: The evidence shows that plaintiff's own negligence was the sole proximate cause of his injuries. Fourth: The evidence shows that the plaintiff failed to use ordinary or reasonable care to extricate himself from or avoid a perilous situation if one existed.'

Accepting the appellant's testimony as true, which under the rule we must do, the appellee was guilty of negligence in operating the taxicab at an unlawful rate...