Continental Southern Lines Inc. v. Klaas

• Decision Date: 08 June 1953
• Docket Number: No. 38493,38493
• Citation: 65 So.2d 575,217 Miss. 795
• Parties: CONTINENTAL SOUTHERN LINES, Inc., et al. v. KLAAS et al.
• Court: Mississippi Supreme Court

Page 575

65 So.2d 575

217 Miss. 795

CONTINENTAL SOUTHERN LINES, Inc., et al. v. KLAAS et al.

No. 38493.

Supreme Court of Mississippi.

June 8, 1953.

Stevens & Cannada and Hedgepeth & Norsworthy, Jackson, Hermon Dean, Canton, for appellants.

Ray, Spivey, & Cain and Nelson Cauthen, Canton, for appellees.

KYLE, Justice.

This case is before us on appeal by the Continental Southern Lines, Incorporated, M. S. Cox, Jr., and Lawyer Partee, defendants in the court below, from a judgment rendered against them by the circuit court of Madison County in favor of Mrs. Ida Mary Klaas, surviving widow, and Lawrence J. Klaas, Jr., and Joyce Anne Klaas, minor children of Lawrence J. Klaas, Sr., deceased, for damages for the wrongful death of the said Lawrence J. Klaas, Sr.

Lawrence J. Klaas, Sr., was killed in an automobile accident which occurred on U. S. Highway No. 51, about five miles north of the City of Canton, on September 16, 1950, when the new Studebaker automobile which he was driving collided with a cattle truck owned by M. S. Cox, Jr., and being operated at the time of the accident by Lawyer Partee Cox' employee. Klaas at the time of the accident was driving his Studebaker automobile northwardly along the east traffic lane of the highway, and his cousin, Clarence Klaas, was riding in the car with him. The Klaas car was running at a rate of speed of about fifty miles per hour, and there is nothing in the record to indicate that Klaas was negligent in any manner in the operation of his automobile at the time of the accident. Lawrence J. Klaas, Sr., died almost immediately after the accident as a result of the injuries which he had sustained. He was 27 years of age at the time of his death, and he left surviving him a wife and two children. Clarence Klaas was also fatally injured in the accident and died before reaching the hospital. He was 28 years of age, and left surviving him a wife, but no children.

From the testimony of the eye witnesses it appears that as the Klaas car was approaching the point on the highway where the accident occurred a Continental Southern Lines passenger bus, proceeding southwardly and closely followed by a heavily loaded cottonseed truck owned and operated by Howard Smithson, Jr., and the cattle truck driven by Lawyer Partee, slowed down and came to a stop for the purpose of picking up two passengers who were standing on the west side of the highway. There was a conflict in the testimony as to whether the passenger bus was still moving or had come to a complete stop when the Klaas car passed it; but just as or immediately after the Klaas car passed the passenger bus the cattle truck swung from behind the seed truck into the path of the Klaas car, and the wreck occurred about 200 feet north of the point on the highway where the passenger bus had stopped.

It is clear from the testimony of the witnesses that the passenger bus and the two trucks were proceeding southwardly in close formation at the time the passenger bus was brought to a stop. The passenger bus had a load of forty passengers. The seek truck was heavily loaded with cottonseed, and the cattle truck was carrying 25 head of cattle. J. C. Welch, the driver of the passenger bus, testified that he was driving at a rate of speed of approximately 45 miles per hour before he began to slow down to pick up the passengers. Howard Smithson, Jr., the driver of the seed truck, who was named as a codefendant in the plaintiffs' declaration, testified that, when the bus regained its speed after leaving Larson's store about one-half mile north of the place where the wreck occurred, he was about 300 feet behind the bus, and that he was driving about 45 miles per hour. Lawyer Partee testified that he had been following the seed truck at a distance of approximately 68 feet for about a mile when the bus and seed truck slowed down abruptly just before the wreck occurred.

The plaintiffs alleged in their declaration that Klaas' death was proximately caused by the concurrent negligence of the bus company, Howard Smithson, Jr., and Lawyer Partee.

The plaintiffs alleged that the bus company was negligent in that, at the time when the automobile which Klaas was driving was approaching the passenger bus and was about to meet the same, and when the cottonseed truck and the cattle truck were following closely behind the passenger bus, the driver of the passenger bus, without exercising due regard for the safety of the plaintiffs' decedent and other persons using the highway, negligently brought the passenger bus to a stop partially on the paved and main traveled portion of the highway, without leaving 20 feet in width of the highway or a sufficiency thereof open for the free passage of other vehicles. The plaintiffs also alleged that the bus company was negligent in bringing its bus to a stop and failed to exercise due care and caution for the safety of the plaintiffs' decedent and other persons using the highway at that time, in that the driver of the passenger bus knew, or by the exercise of reasonable care and caution should have known, that the automobile which Klaas was driving was approaching him from the South, and that the passenger bus which he was driving was being closely followed by the heavily loaded trucks of the defendants Smithson and Cox, and that if he stopped his passenger bus on the main traveled portion of the highway under the traffic conditions then existing, without leaving a sufficient part of the highway open for the safe passage of other vehicles, there was danger and probability that the drivers of the seed truck and the cattle truck would be unable to bring their vehicles to a stop in time to avoid a collision, or to avoid entering the traffic lane in which the plaintiffs' decedent was traveling, yet the driver of the passenger bus brought his bus to a stop partly on the main traveled portion of the highway and without leaving sufficient space open on the highway for the safe passage of other vehicles thereon, and thereby created a condition of great, immediate and imminent danger to the occupants of all of said vehicles, which resulted in the injury and death of the plaintiffs' decedent.

The plaintiffs alleged that Howard Smithson, Jr., was negligent in that he operated his truck at a greater rate of speed than was reasonable and prudent under the traffic conditions then existing; that he followed too closely behind the passenger bus; and that he failed to keep a proper lookout for other vehicles then using the highway. The plaintiffs also alleged that Smithson was negligent in stopping his truck too suddenly in front of the cattle truck and without giving sufficient warning to the driver of the cattle truck, thereby creating a traffic hazard which contributed to the injury and death of the plaintiffs' decedent.

The plaintiffs alleged that Lawyer Partee was negligent in failing to keep a proper lookout for other vehicles on the highway, in driving his truck at an excessive rate of speed in view of the traffic conditions then existing, and in following too closely behind the seek truck. And the plaintiffs alleged that Partee was grossly negligent in attempting to pass the seek truck at a time when it was coming to a stop, and in driving his cattle truck across the center line of the highway and into the path of the oncoming Studebaker car.

Howard Smithson, Jr., was called to testify as an adverse witness for the plaintiffs. Smithson testified that he was about 300 feet behind the passenger bus when the bus regained its speed south of Larson's store; that the stop light on the bus came on several hundred feet before the bus came to a stop; and the bus slowed down gradually. He did not know where the cattle truck was at that time. He stated that the bus started pulling off on the shoulder about 150 or 200 feet before it came to a stop, and that the bus slowed down hard at that time. Smithson stated later that he had to stand on his brakes to keep from running into the bus. Smithson said that when the bus had come to a complete stop the left dual wheel was close to the edge of the pavement, approximately two feet on the pavement. He stated that, when the Klaas car passed the bus, the bus had not been brought to a complete stop; that his seed truck was only about 20 or 30 feet behind the bus; and that his seed truck was still moving as the Klaas car passed the seed truck and the cattle truck pulled into the lane of travel of the north bound vehicle. Smithson stated that he saw the collision, which occurred about 20 feet behind his seed truck through his rear view mirror.

Lawyer Partee was also called to testify as an adverse witness for the plaintiffs. Partee testified that he never saw the passenger bus until after the wreck had occurred. He stated that when the seed truck came to a stop he was about 68 feet behind the seed truck; that he applied his brakes as hard as he could; and that the heavy load that he was carrying caused his truck to swerve across the center line of the highway into the path of the oncoming Studebaker.

R. O. Stringer, who was president of the Northeast Mississippi Junior College and the owner of farm lands in Madison County, testified that he was driving southwardly on the highway when the accident occurred and that he was the first person to arrive at the scene of the accident. He parked his automobile immediately behind the bus on the west side of the highway, and while he was doing that he observed the position of the bus on the highway. He stated that the rear end of the bus was approximately fifty per cent on the highway and fifty per cent off the highway, that is to say, half of the bus was on the pavement and half of the bus was off the pavement. He went immediately to the place where the wreck had occurred. The cattle truck was headed almost directly into the east bank of the highway right of way, and the front end of the Studebaker appeared to be partially under the hood...