Cole v. Delchamps, Inc., 42620

• Decision Date: 13 May 1963
• Docket Number: No. 42620,42620
• Parties: Marcus W. COLE et ux. v. DELCHAMPS, INC., et al.
• Court: Mississippi Supreme Court

Page 911

152 So.2d 911

246 Miss. 846

Marcus W. COLE et ux. v. DELCHAMPS, INC., et al.

No. 42620.

Supreme Court of Mississippi.

May 13, 1963.

Bidwell Adam, Oscar B. Ladner, Gulfport, Forrest B. Jackson, Jackson, for appellant.

Eaton, Cottrell, Galloway & Lang, Morse & Morse, Gulfport, for appellee.

LEE, Presiding Justice.

Suit was filed by Marcus W. Cole and wife, Mrs. Marjorie S. Cole, against Delchamps, Inc., and Gerald Coleman, its local manager, in the Circuit Court of Harrison County to recover damages for the death of their four year old son, William Gregory Cole, allegedly caused by the negligence of the defendants. The defendants, in their separate answers, denied each and every material allegation of the declaration, and set up special defenses.

Delchamps, Inc., prior to and on September 19, 1961, operated a supermarket at 243 Porter Avenue in the City of Biloxi. The store building was about 100 feet wide, with four doors, two for entering and two for leaving. Adjacent to the building was a paved parking lot approximately 200 feet wide. Lanes, of a width of 25 feet with arrows pointing the proper directions for use, indicated the manner of entrance and exit for cars. Parking spaces were eight feet wide. There was sufficient area for parking 125 automobiles. About fifteen feet south of the doors was a ride machine, shaped like a small helicopter, operated by a third person for the entertainment of the children of patrons of the store. The charge was 10cents, and it was customarily ridden by only one child at the time. This machine had been in operation for about two years. The plaintiffs, accompanied by their son, had oftentimes been to the store as customers, and on numerous occasions, the little boy had ridden the machine. He was planning to ride again on the day that he was killed.

Mrs. Marjorie S. Cole, the mother, testified that she parked at a northwest angle in the second row from the front of the store; that she opened the door and got out, and her son slid out behind her; that, as she turned to shut the door, he headed for the helicopter; that she reached for him but could not catch him; that she called to him, but he kept going; that she followed and he ran between the rows of cars in front of a car that was headed south; and that just as he stepped from between the parked cars, a car moving at not more than 10 or 15 miles an hour struck him with its left front bumper, knocked him down, ran over him, and killed him.

Everett J. Hebert, twenty-four years of age and a nursing assistant at the Veterans' Administration Center, drove into the parking lot from Cemetery Road and was headed south toward the beach. He said that he was driving about ten miles an hour and did not see the child until after he had struck something. He heard an outcry, stopped the car, and saw the little boy lying in the lane of traffic. He had been to the supermarket on other occasions and had seen many children on the parking lot on those occasions.

Neither of the witnesses saw an officer or watchman or guard, or other persons, directing movement of the traffic on the parking lot, or any warning or cautionary signs concerning traffic or its speed.

At the close of the evidence for the plaintiffs, the court sustained the defendants' requested peremptory instruction to find a verdict for them. From the judgment in accordance with the instruction, the plaintiffs appealed.

The appellants contend that the court erred in directing the jury to find a verdict for the defendants. They argue that the proof showed that the mother did everything possible to prevent her child, who could be guilty of no direct or contributory negligence, from running across a traffic lane which she knew and appreciated to be a place of danger; and that the operator of the car was guilty of no negligence in the manner of his operation of the car which caused the child's death. On the contrary, they say that the failure of the defendant to warn, to signal, to control traffic, to provide guards, and to mark off properly walkways and areas to be used by pedestrians constituted negligence, which was the sole, proximate cause of the death.

Of course before the defendants can be held in any way answerable for the unfortunate death of this child, it must be shown that they were guilty of negligence proximately causing or contributing thereto. In Clark v. Gilmore, 213 Miss. 590, 57 So.2d 328, this Court cited with approval as a good definition of negligence the following statement from 65 C.J.S. Negligence Sec. 1a(2), p. 304: '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." In the opinion in the above case, too, there was the following quotation also from 38 Am.Jur., Negligence, par. 2, p. 643, to wit:

'* * * 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.'

Under their argument, the appellants attach no blame whatever either to the mother or to the operator...