Flynt v. Fondren

• Decision Date: 26 April 1920
• Docket Number: 21104
• Citation: 84 So. 188,122 Miss. 248
• Court: Mississippi Supreme Court
• Parties: FLYNT v. FONDREN

84 So. 188

122 Miss. 248

FLYNT v. FONDREN

No. 21104

Supreme Court of Mississippi

April 26, 1920

March 1920

1 HIGHWAYS. Driver of motor vehicle not turning to right liable for colliding with other vehicle on proper side of highway.

Where a person driving a motor vehicle upon a public highway, on meeting another motor vehicle, fails to turn to the right and by reason thereof collides with the other vehicle, which is on the proper side of the highway, he is guilty of negligence, and is liable for the injury inflicted upon the vehicle injured.

2 HIGHWAYS. Driver or owner of motor vehicle must show due care and observance of the statute.

Under sections 7577, 5781, and 5785, Hemingway's Code (Laws of 1916, chapter 116), prescribing rules governing the use of motor vehicles on public highways, and making the injury to persons or property by such vehicles prima facie evidence of violation of the law as to the operation, and, as to negligence, the burden is on the driver or owner to show exercise of due care, and the observance of the statutes and, unless he does so, a judgment against him will not be reversed on the ground that he was justified by necessity in colliding with the injured vehicle.

3. HIGHWAYS. Driver of motor vehicle not keeping lookout or keeping his machine under control is negligent.

It is the duty of a driver of a motor vehicle to keep a lookout for other vehicles and persons, and to keep his machine under control. He has no right to assume that the road is clear, but must, under all circumstances, and at all times, be vigilant, and must anticipate and expect the presence of others, and, if he fails so to do, he is guilty of negligence.

4. HIGHWAYS. Duty of drivers of motor vehicles in approaching curves defined.

It is the duty of a driver of a motor vehicle, on approaching curves on the highway, to have his machine under control, to keep a lookout for others, and to give notice, by sounding his horn or bell, of his approach, and to reduce the speed of the car to a reasonable and proper speed, not to exceed ten miles per hour.

5. TRIAL. Court is not required to suspend trial for absence of record evidence.

Courts are not required to suspend trials to accommodate litigants. It is the duty of litigants to have evidence ready for introduction at the proper time, or, if not ready, to have had process properly issued, and a motion for a continuance presented if the process has not been returned, or is insufficient to procure the evidence. The failure of a defendant to have record evidence at the trial will not require a suspension of the trial in his favor until he can get the record.

HON. W. H. HUGHES. Judge.

APPEAL from the circuit court of Simpson county, HON. W. H. HUGHES, Judge.

Action by E. L. Fondren against M. L. Flynt. Judgment in the circuit court, on appeal from justice court, in favor of plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

Hilton & Hilton, for appellant.

Assignment of error number 2 calls the attention to instruction number 2 granted plaintiff on page 14 of the record, which is in the following language: "The court instructs the jury for the plaintiff that it was the duty of the defendant when he was about to meet the plaintiff to have his car to the right of the center of the road so as to have passed plaintiff without interference. And the court further charges the jury for the plaintiff if you believe by a preponderance of the evidence that said injury to plaintiff's car was caused by defendant neglecting to turn to the right of said road, and not by any negligence of plaintiff, then you must find for the plaintiff in such damages that you may believe from all the evidence he has sustained."

It is to be noted by the instruction that the court tells the jury that it was the duty of defendant when he was about to meet the plaintiff to have turned his car to the right of the center of the road so as to have passed plaintiff without interference, and if you believe injury to plaintiff's car was caused by defendant neglecting to turn to the right of the road, etc., you will find for the plaintiff, etc.

We call the court's attention to Sec. 5781, vol. 2, Hemingway's Code. By reading that section it is to be noted that when motor vehicles meet on public highways the persons operating the cars shall reasonably turn to the right, etc. This instruction granted by the court makes it mandatory for a person to turn to the right regardless of situation, etc. It does not allow for those precarious conditions that sometime arise on public highways or on streets, etc. This instruction in fact was a peremptory instruction for plaintiff, because defendant himself admitted that he did not turn to the right but had one of the best reasons known to law as to why he did not, to-wit: "that he believed that if he did so, his life would be in danger." Moreover this instruction does not announce the law correctly because the law of the road as defined by this section makes provision for just such situations as defendant was placed in, in the case at bar, by including the term, "reasonably turn to the right."

In this connection we call the court's attention to the fact that there is no law that requires an automobile to travel at all times on the right hand side of the road but only requires them to reasonably turn to the right when meeting other vehicles, etc. We call the court's attention to the case of Pallotta v. Jackson Light & Traction Co., 64 S. R. 938. As stated in paragraph 2 of that opinion: "The rule however is not an inflexible one and circumstances may arise which will make it necessary to violate it."

And further, "That which is not otherwise lawful, necessity makes lawful, and necessity makes a privilege which suspends the law."

Assignment of errors number 3 and 4

We call the court's attention to instruction number 3 granted plaintiff as shown by pages 14 and 15 of the record which is in the following language to-wit: "The court charges the jury for the plaintiff that if you believe by a preponderance of the testimony in this case that plaintiff and defendant were operating motor vehicles on the public highways of the town of Mendenhall and that when the said parties were about to meet, the plaintiff turned his car to the right of the center of the road and if you further believe by a preponderance of the evidence that the defendant negligently kept to the left of said road failing and refusing to turn to the right of the center of the said road and as a result of said negligence came into collision, or struck plaintiff's car and thereby caused said injury, then in this event it is your sworn duty to find for the plaintiff and assess his damages at a sum that in your judgment will fully compensate him for the damage sustained."

And in connection therewith we call attention to instruction number 6 as shown by page 15 of the record which is here set out: "The court charges the jury for the plaintiff that if you believe by a preponderance of the evidence that the defendant saw plaintiff at the said crossing some sixty or seventy yards away and that the said defendant could have reasonably turned his car so as to have escaped said collision then you must find for the plaintiff and assess his damages so as to fully compensate him for the loss sustained.

Both of these instructions are bottomed on the theory that it was the duty regardless of circumstances, for defendant to turn to the right of the road, and moreover they absolutely ignore that principle of law which requires plaintiff to be free of negligence himself, in the operation of his own car, at the time of the collision. They go on the theory that if the defendant neglected to turn to the right of the road and his negligence so to do, caused the collision, then defendant is liable. These two instructions do violence to the law of our state as announced in the case of Krebs v. Pascagoula St. Ry. & Power Company, 78 So. 753.

This case announces the law that contributory negligence on the part of an automobile operator precludes recovery of damages sustained to the automobile. It was therefore necessary for the two instructions above complained of to have included a statement that plaintiff himself was not guilty of any negligence at the time of the collision, but as given are in direct conflict with the laws of our state and are reversible error. Moreover this same principle is announced in the case of Koyse v. Randle, 83 Miss. 168.

It might be argued by appellee in this case, that even though these instructions did not state the law correctly that such errors are cured by the instructions obtained by defendant. We answer such argument by saying that all the instructions obtained by the plaintiff, appellee here, announced a principle by which the jury were to be guided, that was foreign to the law of our state. It is true that the instructions given the defendant properly announced the law, but this brought about such a conflict and contradiction in the rules of law given the jury as their guide that it left them in the woods, so to speak. In other words in granting to defendant proper instructions does not cure the error in granting to plaintiff improper instructions. In the case of M. C. Railroad v. Miller, 40 Miss. 45, the court announced that it was improper to give conflicting instructions to the jury.

In the case of Southern Railroad Co. v. Kendrick et al., 50 Miss. 374, the court states in paragraph 2 of the opinion page 388: "It is remarkable that this instruction states a rule in direct opposition to that stated in the first instruction given for the plaintiffs, and we are unable to perceive upon what principles the learned judge in the court below could have stated such...