Duke v. Mitchell.

• Decision Date: 06 May 1929
• Docket Number: 27903
• Citation: 153 Miss. 880,122 So. 189
• Court: Mississippi Supreme Court
• Parties: DUKE v. MITCHELL. [*]

122 So. 189

153 Miss. 880

DUKE v. MITCHELL. ^[*]

No. 27903

Supreme Court of Mississippi

May 6, 1929

(Division B.)

1 AUTOMOBILES. Negligence. Rule of reasonable care applies to person obstructing highway with wrecker in lifting automobile out of ditch; rule of reasonable care is applied with view to particular circumstances of each case.

The rule of reasonable care is applied to a person obstructing a highway with a wrecker while engaged in lifting an automobile out of a ditch and carrying it in to be repaired; and this rule is applied with a view to the particular circumstances of each case.

2 SUNDAY. Operation of automobile wrecker service is work of "necessity" within Sunday Law.

It is not unlawful for a person or corporation to operate a wrecker and wrecker service on Sunday; such work being a work of necessity, within the meaning of the Sunday law (Hemingway's Code 1927, section 1157).

Division B

APPEAL from circuit court of Monroe county.

HON. C P. LONG, Judge.

Action by Hubert Duke against Lee Mitchell. Judgment for defendant, and plaintiff appeals. Affirmed.

Judgment affirmed.

Paine & Paine, for appellant.

Leftwich & Tubb, for appellee.

Argued orally by Thos. Fite Paine, for appellant, and C. L. Tubb, for appellee.

OPINION

ETHRIDGE, P. J.

The appellant, plaintiff in the court below, brought suit for a personal injury caused by a collision between the automobile in which he was riding and a wrecker car, owned and operated by the appellee, defendant in the court below.

The record shows that late in the afternoon of December 11, 1927, a merchant at Aberdeen had run a seven-passenger sedan into a ditch on the Aberdeen and Amory public road about three miles out of Aberdeen. The defendant, Mitchell, operates a filling station in Aberdeen, and also a garage and wrecker, used for the purpose of getting cars out of ditches and pulling them into the garage for repairs.

On the said afternoon the defendant took his wrecker to the point where the car was in the ditch for the purpose of pulling it out. This operation consumed several hours, during which time the wrecking machine was across the highway; the front wheels being at the edge of the ditch in which was the car, the rear end on the opposite side of the road. There is some dispute as to the distance between the wrecker and the opposite ditch, the evidence introduced by plaintiff tending to show that there was insufficient room to allow a car to pass; while that of the defendant tended to show that a car could pass if it slowed down and was driven with care.

The plaintiff was in a car owned by his father, which was being operated at the time of the injury by a companion. In the car were the plaintiff, the driver and a young lady. The car approached the wrecker from the direction of Amory, and, according to the plaintiff's evidence, was under control and being operated at a reasonable rate of speed--about twenty to twenty-five miles an hour. Before reaching the point where the wrecker was at work, there was a curve in the highway, a short distance away. There was some dispute in the evidence as to how far the curve was from the wrecker; some of the testimony tending to show that it was only about forty feet, and some that it was considerably further.

As the plaintiff approached the wrecker, the "spotlight," as it is called, upon the wrecker, cast a brilliant light for a considerable distance. There were also two other lights upon the wrecking machine, and, according to the defendant's evidence, the car in the ditch had its light burning, and this could be seen.

Plaintiff's testimony tended to show that no signals were given as to the presence of the wrecker with the exception of the spotlight and the occupants of his car took the spotlight to be another automobile with only one light burning, approaching from the opposite direction; that they were blinded by the spotlight, and could not see the wrecker until they were within about twenty...