Edwards v. Murphree, 42892

Decision Date17 February 1964
Docket NumberNo. 42892,42892
Citation249 Miss. 78,160 So.2d 689
PartiesW. L. EDWARDS v. Elton MURPHREE.
CourtMississippi Supreme Court

Mitchell, McNutt & Bush, Tupelo, for appellant.

Ethridge, Minniece & Bourdeaux, Thomas R. Jones, Meridian, Jesse L. Yancy, Jr., Bruce, for appellee.

McELROY, Justice.

Appellee, Elton Murphree, brought suit in the Circuit Court of Calhoun County against the appellant, W. L. Edwards, for damages resulting from an automobile accident that occurred May 7, 1962, on Mississippi Highway No. 9 in Calhoun County. Appellee was a guest passenger in a northbound pickup truck owned and being driven by James Ernest Moore. Appellant, Edwards, was the owner and driver of a southbound automobile.

Appellee charged appellant with negligence in the operation of his vehicle in the following regards: (a) failure to keep proper lookout; (b) failure to keep vehicle under control; failure to decrease speed when approaching the crest of a hill; and (d) excessive speed. Appellant denied negligence on his part and affirmatively charged negligence on the part of James Ernest Moore, driver of the pickup truck in which appellee was a passenger. Appellant charged in the alternative that the accident was unavoidable. Trial resulted in a jury verdict for appellee.

Appellant's primary contention is that appellee, plaintiff below, wholly failed to prove negligence on the part of appellant; that on the contrary, appellee's own evidence and the physical facts show conclusively that the accident was caused solely by gross negligence of the driver of the vehicle in which appellee was riding, in suddenly turning left across the highway directly in the path of appellant's approaching automobile, which was traveling south; that the driver of the vehicle in which appellee was riding northward flagrantly violated sections 8182 and 8192, Mississippi Code 1942, Rec., and that he was guilty of gross negligence in turning left across Mississippi Highway No. 9 at a time when such a turn created an immediate hazard.

Appellant also assigns as error: (1) the court erred in refusing to peremptorily instruct the jury to find for defendant, in overruling defendant's motion for a new trial; (2) the court erred in giving plaintiff certain instructions; and (3) the court erred in refusing instruction No. 9 requested by appellant, defendant.

The evidence revealed the following facts. Mississippi Highway No. 9 is a two-lane hard-surfaced road twenty feet wide that runs generally north and south. North of the gravel road where this accident occurred there is the apex of a hill. The grade of the hill is steeper on the north side of its apex and on that side there is a curve leading into the hill. South of the hill's apex and on the west side of the highway there is a gravel road leading to two houses that can be seen from the high way. It is in entrance of this gravel road that the accident occurred. Further south beyond the gravel road, the highway rises and forms a large loop-type curve to the west. The distance from the center of the gravel road (point of impact) north to the apex of the hill is approximately 124 feet. The general course taken by the highway is marked by curves and hills. The highway immediately north and south of the point of impact is free of curves, but has the hill heretofore described. The accident occurred about noon. The weather was clear and the road dry. Appellee and a friend, James Ernest Moore, were traveling north on Mississippi Highway No. 9 on their way to get some beagle puppies. Moore was driving his 1953 Chevrolet pickup truck, and appellee was a guest passenger. The owner of the beagle puppies lived on the gravel road that entered Highway No. 9 on the west. As the pickup truck approached the gravel road, Moore slowed the truck's speed and gave a hand signal indicating a left turn onto the gravel road. The operators of two vehicles behind him understood his intention to turn and acted accordingly. Immediately before and at the time the pickup truck began its left turn off the highway, the west lane of the highway was clear of southbound traffic. While Moore was turning left to the west, when the front part of his truck had crossed the center line, the top of appellant's automobile came into view on the hill north of the pickup truck. The pickup, already fully committed to its left turn, continued west in an effort to get off the highway; at this point appellant was headed south, but also turned his vehicle west toward the gravel roadway. There was testimony by three of appellee's witnesses that appellant told them a couple of months after the accident that he had seen the truck turning left, but tried to 'beat it' by increasing his speed. Appellant denied this.

Mr. Franklin Lowe, a University of Mississippi faculty member and one of the two disinterested eyewitnesses, testified he was traveling north on Highway No. 9 behind the pickup and that he realized the pickup was going to turn. As the truck began its turn and got its front wheels across the center line of the highway, Lowe saw, for the first time, 'the very top of the car * * *' (appellant's car) in the west lane. He had seen no traffic in the west lane prior to that, even though his position was one of vantage because it was higher than that of the pickup. The appellant's expert witness corroborated the fact of the advantageous position.

Another disinterested eyewitness, Mrs. Max Jenkins, testified she was driving her car behind the pickup with nothing between them, and though she did not remember the driver giving a signal, she knew he was going to turn. She did not see any traffic coming south when the truck was turning, and when the truck turned left she proceeded around it and drove up the hill. She stated that appellant's car then appeared over the hill and proceeded to the point of impact, at the left rear of her car. She said appellant's car seemed to come 'over the hill * * * all at once.'

The evidence in this case is disputed as to facts and circumstances, and presented questions for the jury. Several versions are given as to the exact speed of appellant's vehicle at the time of the accident, the position of the vehicles involved, and whether the eyewitnesses had a good view of the accident.

'In an action to recover damages for injuries sustained in a motor vehicle accident, where the evidence respecting an issue of fact is contradictory, the court cannot rule as a matter of law that the fact has or has not been proved, but must leave the determination of this question to the jury. In cases where a jury trial is had, it is the distinctive province of the court to decide questions of law as distinguished from questions of fact, and of the jury to try the facts of the case; each party has a right to have issues raised by pleadings, when supported by any competent evidence, submitted to the jury under proper instructions. Generally, it may be said that when not only the facts constituting the conduct of the parties, but also the standard of care which they should have exercised, are to be determined, the case is entirely one of fact.' 8 Am.Jur.2d 569, Automobiles and Highway Traffic, Sec. 1012.

Mr. Moore testified he gave a signal to turn left by putting his left arm out of the window, and that at the time there was no southbound traffic in the west lane. The jury could have believed that, though the signal was given as Mr. Moore testified, appellant did not observe it, or he had not come to a point where he could see the car, but in any case, he should have had his car under control so it could be stopped. Appellant did not testify positively that Mr Moore did not give a signal. In the cases of Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487, and Robinson v. Colotta, 199 Miss. 800, 26 So.2d 66, this Court held that a motorist is presumed to have seen what he should have seen. A jury could reasonably believe that a signal was given but not seen. It is a driver's duty to be...

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3 cases
  • Continental Southern Lines, Inc. v. Lum, 43754
    • United States
    • Mississippi Supreme Court
    • January 24, 1966
    ...word 'strict' requires a greater degree of care in the operation of the bus than is required by our statutory law. Edwards v. Murphree, 249 Miss. 78, 160 So.2d 689 (1964); Chadwick v. Bush, 174 Miss. 75, 163 So. 823 (1935); 38 Am.Jur. Negligence Secs. 30, 43 The use of the word 'strict' in ......
  • Stanley v. Morgan & Lindsey, Inc.
    • United States
    • Mississippi Supreme Court
    • October 23, 1967
    ...doing of something which a prudent and reasonable man would not do.' Bouvier's Law Dictionary 2312 (8th ed. 1914); Edwards v. Murphree, 249 Miss. 78, 160 So.2d 689 (1964). It is also pointed out that negligence is the result of the failure to perform a duty; therefore actionable negligence ......
  • Baxter v. Rounsaville, 44208
    • United States
    • Mississippi Supreme Court
    • January 16, 1967
    ...the driver was not liable on the ground of negligence in running into the mule. On the other hand, in the case of Edwards v. Murphree, 249 Miss. 78, 160 So.2d 689 (1964), the driver knew the surrounding conditions and 'was familiar with this particular road, having traveled it frequently, h......

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