Evans Motor Freight Lines v. Fleming

Decision Date30 January 1939
Docket Number33499
Citation184 Miss. 808,185 So. 821
CourtMississippi Supreme Court

Suggestion Of Error Overruled February 27, 1939.

APPEAL from circuit court of Forrest county HON.W. J. PACK, Judge.

Suit by J. W. Fleming and others against the Evans Motor Freight Lines and others for death of Eva Fleming, sustained in an automobile accident. Judgment for plaintiffs, and defendants appeal. Affirmed.


Leathers Wallace & Greaves, and Eaton & Eaton, all of Gulfport, for appellants.

The question of the brilliancy of the rays of light radiated by the headlights on the appellant 's truck is controlled by the provisions of Section 5575, Code of 1930.

Frazier v. Hull, 157 Miss. 303, 127 So. 775.

The undisputed testimony and the physical facts that are clearly established by it leave no doubt that, regardless of the negligence charged and proved against the appellant, the plaintiffs' decedent was killed as the proximate result of the grossest sort of negligence on the part of the defendant J. P. Miles, in the operation of his automobile under the circumstances clearly demonstrated by the record coupled with the contributory negligence on the part of the deceased in using the west side of the highway under the circumstances then surrounding her. In fact, the record unquestionably demonstrates wantonness on the part of the defendant J. P. Miles, which culminated in the death of the deceased, while he was violating every known rule respecting the reasonably safe operation of a motor vehicle on a public highway.

Chapter 309, sec. 1, Laws of 1936, amending sec. 5569, Code of 1930; sec. 5571, Code of 1930; Collins Baking Co. v Wicker, 166 Miss. 264, 142 So. 8.

In numerous decisions, this Honorable Court has held that the driver of an automobile upon a public highway in this state has not the right, under the law, to a clear road, but he must anticipate the presence of persons and vehicles thereon, and must at all times drive at such a rate of speed as will enable him to avoid injury to such persons and vehicles when they come under his observation.

Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; 49 A.L.R. 1402; Frazier v. Hull, 157 Miss. 303, 127 So. 775; Terry v. Smylie, 161 Miss. 31, 133 So. 662; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840.

While it was a violation of the provisions of Section 5574, Code of 1930, for the plaintiffs' decedent to use the west side of the highway, and, under the circumstances, she was guilty of contributory negligence in so doing, still, as we have already seen, the law imposed a mandatory duty upon the defendant, J. P. Miles, to maintain and exercise a vigilant lookout for her and to refrain from killing her with his automobile.

Avery v. Collins, 171 Miss. 636, 57 So. 695; Basque v. Anticich, 177 Miss. 855, 172 So. 141; G. & S. I. R. R. Co, v. Williamson, 162 Miss. 726, 139 So. 601; Graves v. Johnson, 179 Miss. 465, 176 So. 256.

We concede, arguendo, as we are required by familiar law to do, that the appellant 's trucks were being operated on the west half of the paved portion of the highway, to the west of the center thereof, by the appellant 's drivers, Howell Smith and Jack Cook, and, in so doing, the provisions of Sec. 5574, Code 1930, were violated by such drivers, which constituted negligence on their respective parts; but, we say that, after allowing the plaintiffs the full benefit of all of the testimony favorable to them on that question and the benefit of all reasonable inferences that may be drawn from such testimony, no causal connection between such alleged negligence and the death of the deceased is shown by the evidence. Such negligence, if any, amounts to no more than a remote cause in the law of proximate cause. There is no chain of causation between the alleged negligence imputed to the appellant and the death of the deceased, in contemplation of law. At most, the alleged negligence imputed to the appellant could only affo.rd a condition whereby the criminal negligence, or wantonness, on the part of the defendant J. P. Miles could kill the deceased. The evidence clearly demonstrates that there was nothing done by either of the appellant 's truck drivers that proximately contributed to the death of the deceased, in contemplation of the law of proximate cause.

It is well settled in the law of negligence that to constitute proximate cause creating liability for negligence the injury must have been the natural and probable consequence of the negligent act complained of.

Thompson v. Miss. Cent. R. Co., 175 Miss. 547, 166 So. 353; Public Service Corp. v. Watts, 168 Miss. 235, 150 So. 192; Oliver Bus Lines v. Skaggs, 174 Miss. 201, 164 So. 9; Southern Pacific Co. v. Ralston, 62 F.2d 1026; Louisville & N. R. Co. v. Daniels, 135 Miss. 33, 99 So. 434, 34 A.L.R. 516; Bufkin v. Louisville & N. R. Co., 161 Miss. 594, 137 So. 517; Trico Coffee Co. v. Clemens, 168 Miss. 748, 151 So. 175; Lewis v. Graves, 262 Ky. 600, 90 S.W.2d 1040; Stone v. City of Philadelphia, 302 Pa. 340, 153 A. 550; Hoffman v. City of McKeesport, 303 Pa. 548, 154 A. 925.

Even though the appellant's trucks may have been occupying the west side of the paved portion of the highway, as it is charged in the declaration and as it is shown by the testimony of the witnesses for the plaintiffs, appellees here, and by the testimony of the defendant J. P. Miles, both the deceased and the defendant J. P. Miles were well aware of the obstruction thus created long before the death car arrived at the scene of the accident. Under the law applicable to the situation thus created and the positive testimony of the eyewitnesses, who testified for the plaintiffs, and the testimony of the defendant, J. P. Miles, the said defendant J. P. Miles was not, in any wise, relieved of the mandatory duty enjoined upon him by law to exercise a vigilant lookout for the pedestrains then using the west side of the highway and to avoid striking them. The positive testimony on behalf of the appellees and the testimony of the defendant J. P. Miles, together with the reasonable inferences to be drawn therefrom, clearly disclose that the east side of the highway devoted to travel was not obstructed in any manner. In these circumstances, he was not allowed by law to stand his ground on the west side of the pavement and to proceed with unslackened speed ahead, without exercising the vigilant lookout mandatorily required by law, and to strike and kill the deceased simply because the appellant 's truck drivers were violating the law of the road.

Aycock v. Burnett, 157 Miss. 510, 128 So. 100; Myers v. Tiros, 161 Miss. 872, 138 So. 578; Gough v. Harrington, 163 Miss. 393, 141 So. 280; Whatley v. Boolas, 177 So. 1.

Currie & Currie, of Hattiesburg, for appellees.

There is absolutely no escape from the fact that the motor truck ran the automobile out of the highway, in violation of law, at the very time and place where the automobile struck and killed the deceaseds. No intelligent and honest jury could possibly reach any other conclusion or verdict. It is impossible to reason away from the fact, conclusively established by this testimony, that the motor truck did then and there actually run the automobile out of the highway, in violation of law, and that while Miles, the driver of the automobile, was then and there acting in the emergency disclosed by this evidence, in an effort to save himself and his mother, his automobile struck and injured and killed the deceaseds, and the liability of the appellant is absolute. The appellees were entitled to a peremptory instruction against the appellant on the question of liability.

The case at bar is one in which the highway was perfectly straight for a long distance with an unobstructed view and with no natural obstructions in the way of motor vehicle travel on either side, and with ten feet of pavement on each side, on which to travel, and the proof in the case shows that the drivers of the motor trucks saw the pedestrians and the automobile on the highway proceeding south, before the injury, and death of the deceaseds and in ample time for said motor trucks to turn back on their right side of the highway before meeting said pedestrians and said automobile, with no obstructions of any sort in the way to prevent them from turning back to their right hand side of said highway, where the law required them to be, and on this state of facts it is respectfully submitted that the driver of the automobile did have the right to assume that these motor trucks would seasonably or reasonably turn back on his proper right hand side of the highway.

2 Blashfield Cyc. Automobile Law and Practice, Perm. Ed., par. 919, page 60.

A motorist has a right to assume that the driver of a vehicle coming from the opposite direction will obey the law, and to act upon such assumption in determining his own manner of using the road.

Morrison v. Clark, 72 So. 305, 196 Ala. 670; Nelson v. California Const. Co., 22 P.2d 282, 131 Cal.App. 757; Curry v Williams, 293 P. 623, 109 Cal.App. 649; Dania Lbr. & Supply Co. v. Senter, 152 So. 2, 113 Fla. 332; Balono v. Nafziger, 21 P.2d 896, 137 Kan. 513; Lacy v. Lucky, 140 So. 857, 19 La.App. 743; James H. Demourelle & Sons, Inc. v. Hortman Salmen Co., 123 So. 352, 11 La. App. 71; Murray v. Indursky, 165 N.E. 91, 266 Mass. 220; Rice v. Lowell Buick Co., 118 N.E. 185, 229 Mass. 53; Sanderson v. Barkman, 249 N.W. 492, 264 Mich. 152; Columbia Taxicab Co. v. Roemmich, 208 S.W. 859; Belik v. Warsocki, 253 N.W. 689, 126 Neb. 560; Skaggs v. Gypsy Oil Co., 36 P.2d 865; Whitworth v. Riley, 269 P. 350, 132 Okla. 72, 59 A.L.R. 584; Adams v. Fields, 162 A. 177, 308 Pa. 301; Dumont v....

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9 cases
  • Mathews v. Thompson (State Report Title: Matthews v. Thompson)
    • United States
    • Mississippi Supreme Court
    • May 20, 1957
    ...such intervening cause will not interrupt the connection between the original cause and the injury.' In Evans Motor Freight Lines v. Fleming, 184 Miss. 808, 185 So. 821, 823, an Evans truck was traveling north on the west side of the road. Miles, in a car, traveling south, was blinded by th......
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    ...the existing conditions at the particular time. Keith v. Yazoo & M. V. R. Company, 168 Miss. 519, 151 So. 916; Evans Motor Freight Lines v. Fleming, 184 Miss. 808, 185 So. 821; Mississippi Power & Light Company v. Lembo, In passing, we feel it is not amiss to briefly comment on the veracity......
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    ...531 So.2d 615, 618 (Miss.1988); Pargas of Taylorsville, Inc. v. Craft, 249 So.2d 403, 408 (Miss.1971); Evans Motor Freight Lines v. Fleming, 184 Miss. 808, 185 So. 821 (1939). We cannot hold that giving this instruction was harmless because the Garretts offered substantial evidence of great......
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