Dreyfus v. Mississippi City Lines

• Decision Date: 01 May 1972
• Docket Number: No. 46650,46650
• Citation: 261 So.2d 786
• Parties: Mrs. Robert M. DREYFUS and Mrs. Helen Burch v. MISSISSIPPI CITY LINES, a corporation, and James L. Harrington.
• Court: Mississippi Supreme Court

Page 786

261 So.2d 786

Mrs. Robert M. DREYFUS and Mrs. Helen Burch v. MISSISSIPPI CITY LINES, a corporation, and James L. Harrington.

No. 46650.

Supreme Court of Mississippi.

May 1, 1972.

Rehearing Denied May 22, 1972.

Zachary, weldy & Ingram, Hattiesburg, for appellants.

Simrall, Aultman & Pope, Hattiesburg, for appellees.

RODGERS, Presiding Justice.

Mrs. Robert M. Dreyfus and Mrs. Helen Burch, children of Mrs. Elsie Webber, deceased, filed a suit for the death of their mother against Mississippi City Lines, Inc. and James L. Harrington, the operator of a bus belonging to the Mississippi City Lines, Inc., in the Circuit Court of Forrest County, Mississippi. The trial resulted in a verdict and judgment in favor of the defendants James L. Harrington and Mississippi City Ines, inc. The defendants will be hereafter referred to as Harrington and City Lines.

The accident here involved occurred about three o'clock in the afternoon on December 12, 1969, at the intersection of Green Street, Second Avenue, Adeline Street and Hardy Street in the city of Hattiesburg, Mississippi.

Just prior to the accident, Mrs. Webber was walking along the south side of Hardy Street traveling in a westerly direction. Mr. Harrington was driving a City Lines bus on Hardy Street going east at about fifteen (15) to twenty (20) miles per hour. As he approached the four-point intersection he could see through the intersection, and he saw Mrs. Webber as she walked on the south side of Hardy Street beyond the Green Street intersection. The street was dry and the weather was clear. The driver of the bus was traveling at a slow speed and as he approached the intersection the traffic light changed to green, so he proceeded through the intersection. Several witnesses, including Harrington, testified that when the City Lines bus reached a point even with Green Street (which was to the driver's left) a pickup truck came out of Green Street at a rapid rate of speed traveling in a southerly direction. Harrington, the bus driver, testified that he slowed the bus but did not stop suddenly for fear of causing the passengers (who were standing) to be injured. He also said that he did not stop because he had the right-of-way. The pickup truck continued across the intersection making a left turn and struck the left front wheel of the bus. The bus swerved to its right in an effort to avoid the pickup; however, it is said that the collision caused the bus to go farther to the right. The bus driver saw a telephone post to his immediate right, and, in an effort to miss the post, he turned to his left. Someone called out, 'There is a lady.' The bus driver, Mr. Harrington, stopped the bus and went back to a place near a telephone post where he found Mrs. Webber on the ground at the base of a guy wire. She was unconscious. He left to call for an ambulance. An ambulance arrived and took Mrs. Webber to the hospital. There is no testimony to show that Mrs. Webber ever regained consciousness. She was 82 years of age, but in good health at the time of her death. She died without regaining consciousness.

The appellants, plaintiffs in the trial court, made a motion for a directed verdict as to defendant's liability, at the close of all of the testimony, upon the ground that the bus driver admitted liabilty. The court overruled this motion and the appellants now contend that the court erred in so doing.

It is argued that the bus driver, Mr. Harrington, admitted that he saw Mrs. Webber before he reached the intersection, but that he did not keep a lookout for her safety; that he could have stopped after seeing the pickup, but that he continued because he had the right-of-way; that after the pickup struck the bus he did not look to the safety of Mrs. Webber, but tried to get the tag number of the pickup.

We have carefully considered these contentions and we are convinced that all of these contentions were issues of fact to be determined by the jury. The court was correct in submitting to the jury the issue of defendant's negligence. See: Peel v. Gulf Transport Company, 252 Miss. 797, 174 So.2d 377 (1965).

The appellant next contends that the trial court committed reversible error in granting the defendant an instruction on the doctrine of sudden emergency. This instruction is in the following language:

'The Court instructs the jury for the defendants that if you believe from a preponderance of the evidence that the defendant Harrington was confronted at the time of and immediately prior to the accident with a sudden emergency, sudden emergency being defined as a sudden and unusual occurrence that occurred unexpectedly and could not have been foreseen by a resonable and prudent man acting under similar circumstances, and that the emergency was created through no negligence on the part of the said Harrington, and if you further believe from a preponderance of the evidence that the said Harrington pulled to his right in an effort to avoid being hit by said truck, and if you further believe that after the emergency arose defendant driver exercised such care as a reasonably prudent and capable driver would use under the unusual circumstance, and if you find from a preponderance of the evidence that a pickup truck entered into the intersection and if you further find such entry, if any, constituted a sudden emergency, and that defendant Harrington was in no manner responsible therefor and was free and clear of negligence, and that said sudden emergency was the sole proximate cause of the accident, then it is your duty to find for the defendant.' (Emphasis added.)

The appellant again argues, in effect, that the giving of this instruction was error because the defendant Harrington admitted that he did not keep a proper lookout for pedestrians using the street; that he saw the pickup truck approaching; that he could have stopped; and that after the alleged emergency subsided, he did not exercise ordinary care to prevent injury to Mrs. Webber, although he knew that she was walking along the street at the point of collision. In other words, appellant argues that the appellee, Harrington, was not entitled to an instruction on a sudden emergency caused or contributed to by his own negligence.

The appellants cite the following cases: Continental Southern Lines v. Klaas, 217 Miss. 795, 63 So.2d 211, 65 So.2d 575, 67 So.2d 256 (1953); Ladner v. Merchants Bank and Trust Co., 251 Miss. 804, 171 So.2d 503 (1965); and Jones v. Dixie Greyhound Lines, Inc., 211 Miss. 34, 50 So.2d 902 (1951). These cases are authority for the proposition that one cannot claim a sudden emergency as an excuse for the lack of care where the sudden emergency was caused in whole or in part by the person who offers the imminent peril doctrine as a defense to a charge of 'lack of care' on the part of the defendant.

We have reached the conclusion that the instruction was erroneous in form and for that reason the judgment of the trtial court must be reversed, but, in addition thereto, it is open to question as to whether or not a sudden emergency instruction should have been granted in this case. The bus driver stated that he could have stopped after he saw...