Frazier v. Hull

• Decision Date: 21 April 1930
• Docket Number: 28408
• Citation: 127 So. 775,157 Miss. 303
• Court: Mississippi Supreme Court
• Parties: FRAZIER v. HULL

127 So. 775

157 Miss. 303

FRAZIER v. HULL

No. 28408

Supreme Court of Mississippi

April 21, 1930

Division A

Suggestion of Error Overruled May 26, 1930.

APPEAL from circuit court of Coahoma county, Second district HON. W A. ALCORN, JR., Judge.

Action by John Thomas Frazier against Grace Hull. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Kit Williams, of Memphis, Tennessee, and Cutrer & Smith, of Clarksdale, for appellant.

It is negligence to drive an automobile on a highway at such a rate of speed or in such a manner that the car cannot be brought to a stop to avoid hitting an obstacle with in the distance that the beam of light is cast by the car's headlights.

West Construction Co. v. White, 130 Tenn. 502, 172 S.W. 301; Knoxville Ry. & Light Co. v. Vangilder, 132 Tenn. 487, 491, 178 S.W. 1117; Ulmer v. Pistole, 115 Miss. 481; Flynt v. Fondren, 122 Miss. 248; Lauson v. Fon du Lac, 141 Wis. 57; State v. Campbell, 74 A. 927; Weil v. Kreutzer, 121 S.W. 471; Minor v. Mapes, 144 S.W. 471; Stevens Case, 118 P. 313; McDonald v. Yoder, 80 Kan. 25.

The driver of an automobile upon a highway is under the duty to anticipate obstacles and pedestrians and has no right to assume that the highway is clear and that no one is walking on the roadway and must continue on the alert for pedestrians and anticipate their presence.

Ulmer v. Pistole, 115 Miss. 527.

Where it is the duty of a person to be on the alert he is charged with the duty to discover the exposed situation of the plaintiff or injured party.

Berry on Automobiles, 185; Railway v. Haynes, 112 Tenn. 736; Mann v. Davies, 57 Am. Dec. 695; Todd v. Ry. Co., 135 Tenn. 106; Inland Co. v. Toylston, 139 U.S. 551; R. R. Co. v. Ives, 144 U.S. 408.

Where the act complained of merely creates a condition it is not the proximate cause of the injury produced by other causes which take effect in a particular way by reason of the condition.

Cooley on Torts, 38, 33; Davis v. Central R. R., 29 A. 313; Thomas v. Lancaster Mills, 71 F. 481; Herring v. Chesapeake R. R., 45 S.E. 322; Mann v. Davies, 57 Am. Dec. 695; Smith v. N. & S. R. R. Co., 114 N.C. 728; Fuller v. I. C. R. R., 100 Miss. 718; Nashua Iron & Steel Co. v. W. N. R. R. Co, 62 N.H. 159.

Roberson & Cook and J. M. Talbot, all of Clarksdale, for appellee.

A statute requiring that every motor vehicle or bicycle operated or driven upon the public highways of the state after sundown and before sunrise should be equipped on the rear with a visible red light, is applicable not alone to moving motor vehicles but also to motor vehicles at rest temporarily or parked on the traveled portion of the public highway.

Koplovitz v. Jensen (Ind.), 151 N.E. 390; Murphy v. Hawthorne, 44 A.L.R. 1397, 244 P. 79; Horton v. Benson, 266 S.W. 213, 277 S.W. 1050.

The question whether or not the violation of a statute making it negligence per se to drive or stand a car upon a highway without lights between certain hours is the proximate cause of plaintiff's injury is a question for the jury.

Scheppman v. Swennes, 72 Minn. 493, 215 N.W. 861; Darby v. Jarnett, 26 Ohio 199, 259 N.E. 858; Wall v. Cotton, 22 Ala.App. 343, 115 So. 690; McCoy v. Pittsburg Boiler & Machine Co., 124 Kans. 414, 261 P. 30; Willis v. San Bernardino Lumber & Box Co., 82 Cal.App. 751, 256 P. 224; May v. Yellow Cab Company, 8 La. App. 498; Vollinger v. Schwarz & Son (N.J.L.), 137 A. 646; Woolner v. Perry (Mass.), 163 N.E. 750; Jacobs v. Belland, 171 Minn. 338, 214 N.W. 55.

The party who last has a clear opportunity of avoiding the accident notwithstanding the negligence of his opponent is considered solely responsible for it.

Fuller v. I. C. R. R. Co., 100 Miss. 705; 56 So. 783; 21 R. C. L., pages 11, et seq.

The instructions of the trial court as to the law of a case will be considered as a whole; one as limiting or modifying or supplementing others and when considered together as a whole, a verdict will not be set aside or a judgment reversed because one instruction, if standing alone, might be misleading and erroneous.

Y. & M. V. R. R. Co. v. Williams, 87 Miss. 344, 39 So. 489; Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590; Haynes-Walker v. Hankins, 141 Miss. 55, 105 So. 358; Cumberland Tel. & Tel. Co. v. Jackson, 95 Miss. 79, 48 So. 614; G. & S. I. R. R. Co. v. Simmons, 150 Miss. 506, 117 So. 345; 153 Miss. 327, 121 So. 144.

Argued orally by J. M. Talbot, for appellee.

OPINION

Smith, C. J.

The appellant was struck by an automobile driven by the appellee, and sued her for the damage resulting to him therefrom. The jury returned a verdict for the appellee, and there was a judgment accordingly.

The appellant was traveling, at night, on a public highway in an automobile driven by himself, with three companions. A puncture in the tire on one of the rear wheels of the automobile necessitated the stopping of the car in order that the punctured tire might be replaced to a spare tire. The automobile, according to appellant's evidence, was parked on the right-hand side of the road, the left wheels thereof being within the graveled roadway but several feet to the right of the center of the road, and the front and rear lights of the automobile were burning. Immediately after changing the tire, the appellant was standing in the rear of the automobile putting away the tools used by him in changing the tire, and, while there, an automobile driven by the appellee, came upon him from the rear, struck him and his automobile, injuring him seriously. According to the appellee's evidence, the appellant's automobile was parked near the center of the road without any rear light thereon, and she did not see it or the appellant until too late to avoid striking them.

Section 9, Laws of 1916, chapter 116 (Hemingway's 1927 Code, section 6687), provides that "every motor vehicle shall carry, during the period from one-half hour after sunset to one-half hour before sunrise, at least two lighted lamps, showing white lights visible at least two hundred feet in the direction toward which such motor vehicle is proceeding, and shall also exhibit one red light, visible in the reverse direction. Said red light shall be so hung upon the motor vehicle so that it will illuminate and make visible the register number of said vehicle; provided, however, that the user of such motor vehicle may proceed to his destination in event of a bona fide failure of his lights to operate, if he sounds his bell, horn, or other signal device at least once in every two hundred feet, does not proceed at a rate of speed greater than six miles an hour, and takes the first reasonable opportunity to put his lights in order."

The court below charged the jury by one or more instructions, in substance, that it was the duty of the appellant to have a red light burning on the rear of his automobile, and if the jury believed that he did not have such a light, and that his failure so to do was the sole proximate cause of his injury they would find for the appellee. Three questions are presented to us by this instruction: First, does the statute apply to an automobile parked temporarily on one side of a highway? Second, if so, does it apply where the injury complained of is the striking of a person responsible for the automobile being where it was, and who was struck while temporarily out of it and engaged in making repairs thereon? And, third, if both of these questions are answered in the affirmative, should the jury have been permitted, under the evidence, to find that the appellant's failure, if such there was, to have a rear light on his automobile, was the sole or proximate cause of his injury? The statute by the use of the words "visible at least two hundred feet in the direction toward which motor vehicle is proceeding" seems to contemplate an automobile that is being driven on the highway, but such statutes are usually construed to include ordinary stops on the highway for temporary purposes. This, we think, is the true construction of the statute. An automobile does not cease to be proceeding on its journey within the spirit and meaning of the statute, in the light of which spirit it must be construed, merely because its journey was temporarily interrupted. 1 Berry, Automobiles (6, Ed.), section 203, page 172; 1...