Fells v. Bowman
| Decision Date | 05 March 1973 |
| Docket Number | No. 46965,46965 |
| Citation | 274 So.2d 109 |
| Parties | George FELLS v. J. C. BOWMAN, Individually, d/b/a J. C. Bowman Trucking Co., and Thomas C. George. |
| Court | Mississippi Supreme Court |
Frederick C. Berger, R. L. Netterville, Natchez, for appellant.
Heidelberg, Woodliff & Franks, W. Swan Yerger, Jackson, Zuccaro, Wood & Pintard, Natchez, for appellees.
Plaintiff-appellant George Fells brought suit in the Circuit Court of Adams County against J. C. Bowman, doing business as Bowman Trucking Company, and Thomas C. George seeking to recover damages for personal injuries.
The declaration alleged that plaintiff was injured when his pulpwood truck was struck by an automobile driven by the defendant George in the course of his employment with the defendant Bowman. It was alleged that the accident happened because of the negligence of the defendant George in operating his vehicle at an excessive rate of speed, failing to keep a proper lookout, failing to keep his vehicle under proper control, failing to stop the same, failing to pull his vehicle to the right to prevent the two vehicles from colliding, and failing to use any safety appliances on his vehicle.
Defendants-appellees in their answer admitted that a collision occurred between the two vehicles but denied any negligence on the part of the defendants. They also alleged by way of affirmative defenses that plaintiff failed to have proper lights on his vehicle and the required visibility thereof so that traffic approaching from the rear could see the truck for a reasonable distance and because the plaintiff failed to operate his vehicle with a proper taillight on the rear of the truck. It was alleged that this constituted negligence and was the sole proximate cause or a proximate contributing cause to the accident.
A trial was had and the jury returned a verdict for the defendants. A judgment was entered dismissing the suit. From this judgment plaintiff appeals, and the defendants cross appeal.
Since the jury returned a verdict in favor of the defendants, we will state the facts most favorable to them. On August 12, 1970, at about 8:40 p.m., plaintiff-appellant was proceeding easterly on Highway 84 approximately three miles east of Ferriday, Louisiana. He was driving a 1961 International truck loaded with 38,000 pounds of pulpwood. He was driving his truck in the right hand lane or the outside lane of the four-lane highway. He had a taillight on the truck, but it was not on the back of the truck. It was set approximately three feet back underneath the frame. There were some heavy chains hanging almost to the ground from a stanchion on the rear of the truck. Because of the heavy pulpwood, the back end of the truck was lower than the front end. The tail-light could not be seen unless a person got down and looked under the truck. Appellant was driving at a speed of about five to ten miles per hour. Appellant did not see any vehicle behind him prior to the time his truck was struck.
Appellee George was operating his automobile in an easterly direction in the same lane of the highway. There was a delivery truck in front of him which George followed for some distance. The truck was a solid truck approximately seven feet high, and George could not see any vehicle in front of the delivery truck. Both George and the delivery truck were travelling at a speed of approximately 45 miles per hour separated by ten to twelve car lengths. After following the truck for some distance, George decided to pass. He blinked his lights, indicating his intention to pass, and pulled over into the left lane. The truck in front of him prevented him from seeing anything in the right lane, and the left lane was clear. When he reached a point almost to the truck, without giving any signal it suddenly swerved to the left. In order to keep from striking the delivery truck, George cut back to the right as fast as he could. When he cut back into the right lane, plaintiff's pulpwood truck was right in front of him, and although he applied his brakes, he did not have time to stop prior to striking the slow moving truck on the left corner.
Appellant assigned as error the action of the court in refusing to grant his instruction directing the jury to find the defendants guilty of negligence and leaving to the jury the matter of proximate cause. Argued with this assignment is that the trial court erred in overruling appellant's motion for a new trial since the verdict of the jury was against the overwhelming weight of the evidence and evinces passion and prejudice on the part of the jury. We find no merit in either of these assignments. We find at the most it was a jury issue as to whether George was guilty of any negligence that caused or contributed to the accident. The burden of proof was upon appellant to prove by a preponderance of the evidence that George was guilty of some negligence that caused or contributed to the accident. The jury in deciding this issue had a right to draw the inference from the testimony that the driver of the delivery truck did not see the pulpwood truck until the last moment because of the taillight being obscured, and when he saw the pulpwood truck he swerved to the left in front of George to avoid striking the truck. When confronted with this situation, George was justified in turning his vehicle back into the right lane. After a careful consideration of the evidence in this case, we are of the opinion that the jury was justified in finding from the evidence that George was not guilty of any negligence that caused or contributed to the accident. Phillips v. Dow Chemical Co., 247 Miss. 293, 151 So.2d 199 (1963).
The only other error assigned that merits any discussion is that the trial court erred in granting Instruction Nos. 14 and 15 for the defendants.
The Court instructs the jury for the defendants that the law of Mississippi requires that every truck be equipped with a red taillight which when lighted shall be capable of being seen at a distance of 500 feet under normal atmospheric conditions. The Court further instructs the jury for the defendants that if you should find from the evidence that the red taillight on...
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