Collins Baking Co. v. Wicker

Citation142 So. 8,166 Miss. 264
Decision Date30 May 1932
Docket Number29995
CourtUnited States State Supreme Court of Mississippi
PartiesCOLLINS BAKING CO. v. WICKER

(Division A.)

1 AUTOMOBILES.

"Control" of vehicles within statute requiring control of vehicles at all times means that driver shall have ability to stop readily and easily (Code 1930, section 5571).

2 AUTOMOBILES.

Whether motorist in rear had automobile under control and whether truck driver ahead, stopping on bridge, exercised ordinary care at and immediately before collision held for jury (Code 1930, section 5571).

3 TRIAL.

Instructions in effect, that it was truck driver's duty to give warning to those in rear of intention to stop, held erroneous, because question was for jury.

4 AUTOMOBILES.

Automobile driver in lead need not keep vigilant lookout for drivers trailing him.

5. AUTOMOBILES.

Truck driver was bound to use ordinary care for those in rear (Code 1930, section 5576).

6. AUTOMOBILES.

Truck driver's negligence in failing to give warning to a motorist in rear of intention to suddenly stop on bridge held for jury.

7. NEGLIGENCE.

Where facts are conceded but inference regarding negligence is doubtful, depending upon general knowledge and experience of men, it is jury question.

Division A

APPEAL from circuit court of Scott county.

HON. D. M. ANDERSON, Judge.

Action by John Wicker against the Collins Baking Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

R. L. Nichols, of Forest, and Enochs & Enochs, of Jackson, for appellant.

When the facts are not disputed and the inference or conclusions resulting therefrom are indisputable, the question of contributory negligence is one of law for the court to determine, and not one of fact for the jury. This statement is as applicable to negligence as to contributory negligence.

Bridges v. Jackson Electric Railway, 86 Miss. 584.

In passing upon this assignment of error, all the evidence in favor of the plaintiff is to be assumed as true, and assuming all such evidence to be true, if such assumption shows that the defendant was not guilty of negligence, then the peremptory instruction should have been granted in favor of the defendant, and the refusal of the lower court so to do was error.

Actionable negligence is the inadvertent failure of a legally responsible person to use ordinary care, under the circumstances, in observing or performing a non-contractual duty implied by law, which failure is the proximate cause of injury to a person to whom the duty is due.

Mississippi Home Ins. Co. v. L. & N. R. R. Co., 70 Miss. 119, 12 So. 156.

Ordinary care is that care which ordinarily prudent persons would exercise under the same, like or similar circumstances, and the want of such care is negligence.

6 Words and Phrases (First Series) 5031; 45 C. J. 911; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 99 So. 9; Cumberland Tel. etc., Co. v. Woodham, 99 Miss. 318, 54 So. 890; Bonelli et al. v. Branciere, 127 Miss. 556, 90 So. 245.

If the defendant knew the plaintiff was trailing its truck, it did not know that the plaintiff intended to disobey the law, and had no, reason to so believe until the collision occurred.

Kulman & Co. v. Samuels, 148 Miss. 871, 114 So. 807; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Porter v. Nesmith, 124 Miss. 517, 87 So. 5.

The legislature did not intend to require the driver of. a vehicle, Janus-like, to keep the same constant lookout backward as in the range of vision looking forward.

Delfs v. Dunshee, 143 Iowa 381; Watkins v. Brynes, 230 P. 1048; Stever v. Woodward, 141 N.W. 931, 46 L.R.A. (N.S.) 644; Dreker v. Divine, 192 N.C. 325.

The test of control is the ability to stop quickly and easily. When this result is not accomplished, the inference is obvious that the car was running too fast, or that proper effort to control it was not made.

Lorah v. Rhinehart, 89 A. 967; Riccio v. Ginsberg, 139 A. 652.

If the appellee had assumed that the appellant would obey the law, and had acted on that assumption, and obeyed the law himself, no collision would have occurred. And if the appellant had no right to obey the law, and assume that the appellee would obey the law, without giving notice of its intention to obey the law, it follows that at a critical time a great burden of guardianship of others who are to the rear, and who ought to look out for themselves, is cast upon drivers of motor vehicles, when every attention and effort is needed and should be directed ahead.

The court erred in granting the following instruction No. 1:

"The court instructs the jury for the plaintiff that if you believe from the preponderance of the evidence in this case that the driver of defendant's truck knew that plaintiff was following and approaching his truck in close proximity from the rear, then it became and was the duty of the driver of defendant's truck to hold out his hand or give other signal of his intention to stop his truck on the bridge, if you believe that he suddenly stopped his truck on the bridge; and if you believe from the preponderance of the evidence that the driver of the defendant's truck, knowing that the plaintiff was approaching in his car in close proximity from the rear, suddenly stopped his truck upon the bridge without holding out his hand or giving some other signal of his intention to stop his truck on the bridge, and that the sudden stopping of defendant's truck by the driver of said truck, if you believe he stopped without giving such notice, was the proximate cause of plaintiff's injury, then you must find a verdict for the plaintiff."

In reference to the first objection to this instruction, it was a very serious error for the court to assume that the evidence warranted a finding that appellant's track stopped on the bridge. In other words, the jury believed that the judge believed there was evidence to warrant such a finding.

It is error to give instructions when there is no evidence on which to base them.

Hogan v. State, 46 Miss. 274; Co-operative Association v. McConnico, 53 Miss. 233; Kinnare v. Gregory, 55 Miss. 612; Adams v. Power, 48 Miss. 450; Phillips v. Cooper, 50 Miss. 722; Parker v. State, 55 Miss. 414; Bowman v. Roberts, 58 Miss. 126; Railroad Co. v. Minor, 69 Miss. 710.

What amounts to, negligence, as we have already seen, is a question of law. It is for the court to say, in a majority of instances, what is, and what is not, negligence as an abstract proposition.

Southern Railway Co. v. Floyd, 99 Miss. 519, 55 So. 287.

Where the facts are conceded, but the inference in regard to negligence is still doubtful, depending upon the general knowledge and experience of men, it is the judgment and experience of the jury, and not the judge, which is to be appealed to.

Priestly v. Hays, 147 Miss. 843, 112 So. 788; Belisle v. Lisk, 16 F. (2d Series) 261.

The lower court erred in granting the second instruction in favor of the appellee as follows:

The court instructs the jury that if you believe from the preponderance of the evidence in this case that the place where the collision occurred was frequently traveled by automobiles or other vehicles, and that the driver of defendant's truck had reason to believe that an automobile was approaching him from the rear, and did know that plaintiff's automobile was approaching him from the rear, then the driver of defendant's truck was under duty to hold out his hand or give other signal of his intention to stop his truck on the bridge, if he stopped on the bridge.

If the errors in instructions here complained of are errors that might be cured by instructions for the defendant, opposing counsel will search in vain for instructions for the defendant curing them. Conflicting instructions in such matters as are here, complained of do, not correct each other, but only create confusion in the minds of the jurors who are left without any certain and correct guide.

Godfrey v. Railway Co., 101 Miss. 565, 58 So. 534; Harper v. State, 83 Miss. 402, 35 So. 572.

The driver of defendant's truck was not negligent in giving no signal, but if we are wrong in that contention, it was still for the jury to say under the circumstances if the driver of defendant's truck, under the circumstances, failed to exercise ordinary care in not giving a signal.

O'Neil v. Potts, 130 Minn. 353.

Frank F. Mize, of Forest, for appellee.

The evidence offered by the appellee and by the appellant presents a clear issue of fact to be determined by the jury. It was a question of fact from the evidence for the jury to determine whether or not appellant's truck driver stopped or comparatively stopped the truck in the center of this bridge without giving any warning, signal or notice of his intention to, stop. It was a question of fact from the evidence as to whether or not appellant's truck driver knew, or ought to have known, that appellee was following appellant's truck in close proximity. It was a question of fact to be determined by the jury as to whether or not the stopping of appellant's truck on the bridge without signal or notice under the circumstances was the proximate cause of appellee's injury.

Ordinary care is what an ordinarily prudent person would exercise under the same, like or similar circumstances.

Miss. Home Insurance Company v. L. & N. R. R. Company, 70 Miss. 119.

The want of such care (ordinary care) on the part of appellant is negligence.

Appellee says that this negligence on the part of appellant's truck driver was such that by the usual course of events it would result in injury to the occupant of the following car; that it was not only within the range of probability as would be viewed by ordinary men, but under the circumstances it would,...

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