Ferguson v. Denton

• Decision Date: 14 November 1960
• Docket Number: No. 41548,41548
• Citation: 124 So.2d 279,239 Miss. 591
• Parties: Ray FERGUSON v. C. E. DENTON et al., Partners, d/b/a Denton Manufacturing Company of Cleveland, Mississippi.
• Court: Mississippi Supreme Court

Page 279

124 So.2d 279

239 Miss. 591

Ray FERGUSON v. C. E. DENTON et al., Partners, d/b/a Denton Manufacturing

Company of Cleveland, Mississippi.

No. 41548.

Supreme Court of Mississippi.

Nov. 14, 1960.

Hugh F. Causey, Smith, O'Hare & Smith, Cleveland, for appellant.

Charles C. Jacobs, Jr., Cleveland, for appellee.

ARRINGTON, Justice.

The appellant, Ray Ferguson, brought this suit in the Circuit Court of the Second Judicial District of Bolivar County against C. E. Denton and others, a partnership doing business as Denton Manufacturing Company, to recover damages for personal injuries, medical and hospital bills, and for loss of income due to his injuries. The jury returned a verdict for $1,000, and from this judgment the appellant appeals.

This suit is the result of a collision between an automobile driven by appellant and a truck owned by appellees and being driven by one James L. Kemp. The accident occurred on September 8, 1958, about 11 o'clock a. m., on a clear day in the Town of Boyle, at or near a point where State Highway No. 446 intersects Sobriesky Street. The appellant was traveling east in the automobile. The truck had been parked near the curb northeast of Highway 446. He had backed up and was making a right turn to proceed south across the highway when the collision occurred. The truck was 25 feet long, 8 feet wide, and 9 feet high, and was a refrigerated ice cream truck, painted white. According to the testimony of Kemp, his directional or blinker light indicating a right turn was on.

The declaration charged that the collision was due to the gross negligence of Kemp in pulling the truck into the highway. The answer of the appellee alleged that the sole cause of the collision was due to the negligence of Ferguson, who failed to keep a proper lookout and failed to have his automobile under proper control.

Ferguson appeals as to damages, and contends that the damages awarded appellant were against the overwhelming weight of the evidence and so inadequate as to manifest bias and prejudice on the part of the jury. He also assigns as error and argues that it was reversible error for the trial court to give the appellee an instruction on contributory negligence under our comparative negligence statute, Section 1454, Mississippi Code of 1942, for the reason that the appellant Ferguson was not guilty of negligence. With this statement we do not agree. This instruction was justified under the pleadings and the evidence. Under the appellant's own testimony, he was guilty of negligence in not keeping a proper lookout and in not having his car under proper control. The evidence shows that when he entered Highway 446 west of Sobriesky Street, he had a clear view of the highway as he was traveling east. His testimony was that he did not see the truck move and did not see it until it was within a few feet of him when it struck his automobile in the left side. According to the testimony of Kemp, the driver of the truck, he had not reached the center line of the highway, and he did...