Fink v. East Miss. Elec. Power Ass'n

• Decision Date: 13 October 1958
• Docket Number: No. 40867,40867
• Citation: 234 Miss. 221,105 So.2d 548
• Parties: Mrs. Alice FINK v. EAST MISSISSIPPI ELECTRIC POWER ASSOCIATION, et al.
• Court: Mississippi Supreme Court

Page 548

105 So.2d 548

234 Miss. 221

Mrs. Alice FINK v. EAST MISSISSIPPI ELECTRIC POWER ASSOCIATION, et al.

No. 40867.

Supreme Court of Mississippi.

Oct. 13, 1958.

Beard, Pack & Ratcliff, Laurel, Wilbourn, Wilbourn & Lord, Meridian, for appellant.

Welch, Gibbes & Graves, Melvin, Melvin & Melvin, Laurel, Floyd, Cameron & Dean, Meridian, for appellees.

GILLESPIE, Justice.

This is an appeal from a jury verdict and judgment for all defendants in an action wherein damages were sought for the alleged wrongful death of Ralph S. Fink, who lost his life in an automobile accident.

Mrs. Alice Fink, the appellant, widow and sole heir at law of Ralph S. Fink, deceased, filed suit below against appellees, East Mississippi Electric Power Association and its servant and driver, Brewer, and R. N. McElroy and his servant and driver, Barber, and Billy Ralph Ousley. The first trial resulted in a jury verdict for all defendants. The lower court set aside the verdict and granted a new trial. The second trial resulted in a verdict for all defendants and judgment was entered accordingly, and plaintiff prosecuted this appeal.

For brevity, we refer to the truck operated by Brewer for East Mississippi Electric Power Association as the Brewer truck, and the truck operated by Barber for R. N. McElroy as the Barber truck.

The jury verdict for defendants below resolved all conflicts in the testimony in their favor.

As the Brewer truck proceeded south along paved Highway No. 15 about eight miles south of Louisville, Mississippi, it slowed down to about 30 miles an hour just before or at about the time it reached a slight curve at the crest of a hill, which was about 125 yards north of a dirt road running west into which Brewer intended to turn. At this time, the Barber truck was 150 or 200 feet behind the Brewer truck. Brewer drove at diminished speed part of the way down the slight grade and began slowing down to make his right turn, and as he descended the hill he gave both an arm signal and an electric blinker signal of his intention to turn right. Barber had been following and slowly gaining on the Brewer truck for several miles. When Barber reached the crest of the hill above mentioned, he noticed that he was gaining on the Brewer truck faster than previously and saw that Brewer was slowing down. Although Barber did not see Brewer's turn signals, he observed the slowing of the Brewer truck and began slowing his truck since he saw that a yellow line to the right of center started some distance ahead, and which prohibited Barber from passing Brewer. The Barber truck closed the distance between it and Brewer's truck until Barber was a short distance behind Brewer as they approached the dirt side road. Barber did not give any signals of his intention to slow down because, situated as he was, he did not have time to do so. Both the Brewer and the Barber trucks slowed down without a sudden deceleration and did not skid their wheels. Neither truck stopped until after the collision. About the time that Brewer had made his turn onto the side road and Barber was proceeding south along the west lane of the highway near the road Brewer had turned into, Barber heard tires screeching behind him, and immediately thereafter two automobiles collided headon in the east lane of the highway 71 feet north of the road into which Brewer had turned. These two automobiles were the Ousley's, traveling south, and Fink's driven by one Nelson, traveling north. Ralph S. Fink was killed in the collision.

There was no evidence of probative value tending to show that the driver of the Fink automobile was negligent in any manner. Nelson was operating the Fink automobile at a speed of about 40 miles per hour and had slowed down to some extent when the Ousley automobile suddenly pulled out from behind the Barber truck directly into the east lane and in front of the northbound Fink automobile.

Ousley, according to his own testimony, was following the Barber truck by about 75 or 100 feet and 'just before the accident occurred, I realized that the (Brewer) truck in front had made a sudden stop, and the second truck was also making a very sudden stop'; that neither truck gave any signal; that Ousley was not able to bring his automobile to a stop behind the Barber truck; that he, Ousley, realized that he would either have to go off the fill to the right, hit the Barber truck, or turn to the left into the northbound traffic lane; that he decided to take his chances in his lefthand traffic lane and cut into the left lane just before he reached the Barber truck; that he never did see the Fink automobile approaching from the south. Ousley testified that he hit his brakes as hard as he could and saw that his brakes would not stop his automobile before he hit the Barber truck. Ousley stated that he had no trouble with his brakes driving from Oxford, Mississippi to the place of accident, and that his brakes had been working properly.

The road was straight for about 300 feet from the scene of the accident to the crest of a hill to the south. Ousley admitted he did not see the Fink automobile until he had gotten into the east lane.

There was no proof offered by Ousley as to why his brakes did not hold. The proof showed without dispute that the left front tire of the Ousley car skidded a distance of 35 feet beginning in the west lane and ending at the place of impact in...