Cox v. Dempsey

• Decision Date: 11 January 1937
• Docket Number: 32283
• Court: Mississippi Supreme Court
• Parties: COX et al. v. DEMPSEY

171 So. 788

177 Miss. 678

COX et al. v. DEMPSEY

No. 32283

Supreme Court of Mississippi

January 11, 1937

Division A

1 AUTOMOBILES.

Where owner of disabled cream truck employed wrecker to tow truck and first wrecker became disabled, and owner of first wrecker employed second wrecker to do towing, driver of second wrecker had full control of details and methods of towing and was not subject to control of owner or driver of cream truck so as to impose liability on latter for injuries sustained by passenger in truck which was forced off the road by wrecker while it was towing cream truck.

2 VENUE.

In suit by passenger in log truck for injuries sustained when log truck, which came over hill on wrong side of highway, was allegedly forced off of highway 'by wrecker traveling' in middle of highway, court did not err in overruling defendants' motions for change of venue on ground driver of truck, who was the only resident defendant had been fraudulently joined for purpose of fixing venue.

3. AUTOMOBILES.

That driver of log truck in which passenger was riding was negligent in operation of truck did riot relieve driver of wrecker driving in opposite direction of liability to passenger in truck for negligence in dangerously obstructing highway, since he had no right to assume that other persons using highway would keep their vehicles under constant control and obey traffic laws.

4. AUTOMOBILES.

In suit by passenger in lop truck for injuries sustained when log truck which came over hill on wrong side of highway was allegedly forced off of highway by wrecker traveling in middle of highway, whether driver of wrecker was guilty of negligence which proximately contributed to injury held for jury.

5. TRIAL.

Fact that plaintiff's instructions, if considered alone, were subject to criticism, held not reversible error, where, when read altogether, they presented law applicable to (acts with reasonable accuracy.

6. DAMAGES.

Twenty-five thousand dollars held not excessive for almost fatal injuries to man about twenty-eight, use of whose arm was permanently impaired, leg permanently shortened about three inches, foot and ankle permanently injured, and nervous system permanently impaired.

7. AUTOMOBILES.

In suit by passenger of log truck for injuries sustained when log truck, which came over hill on wrong side of highway, was allegedly forced off of highway by wrecker traveling in middle of highway, negligence of driver of log truck and whether it was proximate cause of plaintiff's injuries held for jury.

HON. JNO. F. ALLEN, Judge.

APPEAL from the circuit court of Choctaw county HON. JNO. F. ALLEN, Judge.

Suit by L. L. Dempsey against D. S. Cox, William Hemby, C. L. Jones, John Turner, and O. N. Harris. From a judgment in favor of plaintiff against D. S. Cox, William Hemby, and John Turner, they appeal, and, from a judgment of dismissal as to O. N. Harris, the plaintiff appeals. Affirmed in part, reversed in part and remanded.

Affirmed in part; reversed in part; and remanded.

John F. Frierson, of Columbus, for appellants, Cox and Hemby.

We maintain first that there is no evidence whatever to show any negligence on the part of either Turner or William Hemby, and second, that even the testimony of the plaintiff demonstrates gross negligence on the part of Harris and that his gross negligence, wrecking the truck as he did against the bank, coming over the top of the hill without his car under control, in complete violation of the rules of the road as designated in section 5571 of the Code of 1930, constitute the sole proximate cause of the accident.

In determining what is proximate cause the true rul e is that the injury must be the natural and probable consequence of the negligence; such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act.

South Sale Passenger Ry. v. Trich, 2 A. S. R. 672. Kreigh v. Westinghouse C. K. & Co., 152 F. 120, 11 L.R.A. (N.S.) 684; Cooley on Torts (3 Ed.), 73.

Plaintiff in an action for personal injuries must show not only that the defendant was negligent, but also that such negligence was the proximate cause of the injury.

O'Mally v. Eagan, 77 A.L.R. 582; Claypool v. Wigmore, 71 N.E. 509; 16 Am. & Eng. Encyc. of Law, page 436; Washington v. Baltimore R. R. Co., 7 W.Va. 190; Lewis v. Flint, etc., R. R. Co., 54 Mich. 55, 19 N.E. 744.

The actions of John Turner and the position of his wrecker even as alleged and testified to on the part of the plaintiff (1) do not constitute such negligence as could be held, and (2) even if negligence, do not constitute any contributing proximate cause of the injury. It is manifest that the negligence of Harris was a, not to say the, proximate cause of the injury.

The supreme courts have held that the driver or owner of a motor vehicle must show due care and observation of the statute.

Flint v. Fondren, 122 Miss. 248, 84 So. 188; Cumberland T. & T. Co. v. Woodham, 99 Miss. 318, 54 So. 890,

It is elemental that, in order that a wrongdoer may be held liable, even in a civil action, for negligence, it is necessary to show that the injury complained of was the natural and probable result of the negligence.

Jabron v. State, 172 Miss. 135, 159 So. 406; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842.

Precaution is the duty only so far as there is reason for apprehension. Ordinary care of a reasonably prudent man does not demand a person should prevision or anticipate an unusual, improbable, or extraordinary occurrence though such happening is within the range of possibility.

I. C. R. R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333; Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219; D'Antoni v. Albritton, 156 Miss. 758, 126 So. 836; 54 C. J. 109; Hellan v. Supply Laundry Co. 94 Wash. 6,83, 163 P. 9.

The operator of a motor vehicle is not bound to anticipate negligence of those in charge of other vehicles; but in the absence of any circumstances which reasonably should put him on notice to the contrary, he has the right to assume and to act on the assumption that other users of the highway will exercise reasonable and ordinary care and observe the rules of the road and traffic regulations.

Berry on Automobiles, page 175; 3 Huddy on Automobiles (9 Ed.), sec. 180; 46 C. J. 884; Wilson v. Mullen, 11 Tenn.App. 327; I. C. R. R. Co. v. Oswald, 338 Ill. 270, 170 N.E. 247; Harnett v. Boston Store, 265 Ill. 331, 106 N.E. 837, L.R.A. 1915C 460; Chicago Hair & Bristle Co. v. Mueller, 203 Ill. 558, 68 N.E. 51.

Cox was not the master of Turner. C. L. Jones was an independent contractor.

Cox's truck was disabled and completely at the mercy of the wrecker which was pulling it. The rate of speed, the position in the road, when to start and when to stop were all entirely within the control of Turner, the servant of Jones, and not under any circumstances within the control of Hemby, Cox's servant. Any authority that Hemby might have attempted to exercise over Turner would have been a usurpation.

He is deemed to be a master who has supervision, choice, control and direction of the servant, and whose will the servant represents, not merely in the ultimate result of the work, but in the details.

39 C. J. 33, 1274, 1277; Wagner v. Larsen, 174 Wis. 26, 182 N.W. 336; Donovan v. Laing, etc., Constr. Syndicate, Ltd., 1 Q. B. 629; Peach v. Bruno, 224 Mass. 447, 113 N.E. 279; Shepard v. Jacobs, 204 Mass. 110, 90 N.E. 392, 26 L.R.A. (N.S.) 449, 134 Am. St. Rep. 648; 63 C. J. 21; The Fort George, 183 F. 731; Societe Des Voiliers Francais v. Oregon R. & Nav. Co., 178 F. 324; Densby v. Bartlett, 318 Ill. 616, 149 N.E. 591; Sargent Paint Co. v. Petrovitzky, 71 Ind.App. 353, 124 N.E. 881; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 191; McDonald v. Hall Neely Lbr. Co., 165 Miss. 143, 14,7 So. 315; Isaacs v. Printz & Wilds, 133 Miss. 195, 97 So. 558.

The preponderance of evidence establishes non-liability of defendants.

The general rule is that the burden of proof rests upon the party who has the affirmative of the issue, as determined by the pleadings, or where there are no pleadings, by the nature of the investigation. This rule is founded upon the obvious purpose of facilitating justice by serving the convenience of the court and as the rule of burden of proof is fixed rule of law the burden never shifts from the party having the affirmative of the issue.

22 C. J. 70, 71; Kyle & Williams v. Calmes, 1 How. 121; Babbitt Motor Vehicle Law (4 Ed.)1614-16, sec. 2233, and 1618, sec. 2235; Flint v. Fondren, 122 Miss. 148, 84 So. 188; College Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Southern Ry. v. Floyd, 99 Miss. 519, 55 So. 287

The peremptory instructions should have been granted for all three of these defendants.

We respectfully submit that the whole testimony of the case shows first, gross negligence of Harris, so gross as to make his negligence the sole proximate cause of the injury sustained by appellee; and second, the testimony of the two defendants Turner and Hereby, and of two disinterested parties, Dan Nelson, the negro riding with Turner, and Mrs. Kemp, shows by a clear preponderance of the evidence that there was no negligence whatever in the operation of the wrecker.

Hull v. Littauer, 162 N.Y. 569, 57 N.E. 102.

Court may judicially notice those prominent facts regarding automobiles and trucks which are so distinctly capable of intelligent observation as to be safely regarded as certain and indisputable facts to all persons of average understanding and with average opportunities of observation.

Luckett v. La. Oil Corp., 171 Miss. 570, 158 So. 199; 15 R. C. L....