Frizell v. Guthrie, 39400

Decision Date20 December 1954
Docket NumberNo. 39400,39400
Citation76 So.2d 361,222 Miss. 501
PartiesCharles T. FRIZELL v. Grady GUTHRIE and Lawrence Guthrie.
CourtMississippi Supreme Court

Charles W. Busby, Jackson, for appellant.

John S. Holmes, Yazoo City, for appellee.

KYLE, Justice.

Charles T. Frizell, as plaintiff, recovered a judgment in the County Court of Yazoo County against Grady Guthrie and Lawrence Guthrie, defendants, for the sum of $540.46 in an action for damages for injuries to the plaintiff's automobile. From that judgment the defendants prosecuted an appeal to the circuit court. In their assignment of errors in the circuit court, the defendants alleged that the judgment of the county court was contrary to the overwhelming weight of the evidence. The circuit court set aside the judgment of the county court and ordered a new trial. The case was then tried de novo before a jury in the circuit court, and a verdict was rendered in favor of the defendants and a judgment was entered accordingly. From that judgment the plaintiff has prosecuted this appeal.

The accident which resulted in the injury to the appellant's automobile occurred on April 28, 1949, at a point on State Highway No. 16 about two miles east of Yazoo City, when a large moving store truck owned by the appellee, Grady Guthrie, collided with the appellant's automobile, as the driver of the truck undertook to execute a left turn and enter a driveway leading up to Guthrie's Store, which was located on the north side of the highway. The appellant's automobile was badly damaged as a result of the collision, and the repair bill amounted to $465.71. The appellant also incurred an additional expense of $74.75 for the hire of another automobile for use by him during the 23 days that he was deprived of the use of his own car.

Only one point is argued by the appellant's attorney as ground for reversal on this appeal, and that is that the circuit court erred in setting aside the judgment of the county court and in granting a new trial before a jury in the circuit court.

The records of both trials are before us on this appeal.

The case was tried in the county court by the trial judge without a jury.

The evidence presented during the trial in the county court was substantially as follows:

The appellant testified that he was driving eastwardly in his automobile on State Highway No. 16 at a rate of speed of 40 or 45 miles per hour; and that he saw the truck ahead of him as he rounded a curve about 600 feet west of the Guthrie store. The truck was proceeding eastwardly at a slower rate of speed in its proper lane of travel. The appellant blew his horn and undertook to pass the truck, and as he was about to pass the truck the driver of the truck, without giving any light or hand and arm signal, made a left turn toward the entrance into a graveled driveway in front of the store. The left end of the bumper and the left front fender of the truck struck the right side of the car, causing the rear end of the car to skid into a ditch or grader furrow; and as the appellant pulled the car back on the highway, the car plunged forward and ran eastwardly and southeastwardly across the road, and after striking two mail boxes came to rest against the road embankment on the south side of the road.

The appellant stated that the truck struck the car on the right side after the appellant had already started to pass; that the right door and fender extensions of the car, which was a 2-door 1947 model Buick, were badly damaged as a result of the impact; and that the front end of the car was also damaged when the car struck the two mail boxes on the south side of the road.

Jake Perkins, who was riding on the front seat of the car with the appellant at the time of the collision, testified that he saw the accident when it occurred; that he saw no tail light on the truck, and that, if the driver of the truck gave any signal indicating his intention to make a left-hand turn, he did not see it. Perkins stated that the appellant was driving about 35 or 40 miles per hour when he undertook to pass the truck; that the appellant sounded his horn before he started to pass the truck; and that there was ample room for him to pass at that time. Charlie Davis and Luther Davis testified that they were standing on the front porch of Guthrie's Store at the time of the accident; that they saw the truck and the automobile as they approached the point where the accident occurred; that the appellant blew his horn before attempting to pass the truck; and that they did not see the truck driver give any hand signal of any kind of indicate that he was about to make a left turn into the driveway in front of the store. Charlie Davis testified that the appellant appeared to be driving at a rate of speed of 35 or 40 miles per hour.

The appellee, Lawrence Guthrie, testified that he was the driver of the truck at the time the accident occurred; that as he approached the entrance to the driveway he rolled down the glass window of his truck, and gave an arm signal, and slowed down to about two miles an hour. He looked into his rear view mirror and saw the Buick car coming around the bend about 600 feet behind him. He stated that at the time the collision occurred the two front wheels of the truck were off the black top, and that the Buick car ran right into him, knocking his truck back out into the road. The brakes of the truck were torn loose, and the truck rolled down the highway until it came to a stop at a point about 150 or 160 feet east of the driveway entrance. Guthrie estimated that the Buick car was traveling at a rate of speed of 70 or 75 miles an hour at the time of the impact.

Emmett Guthrie, a nephew of Grady Guthrie, testified that he was on the front porch of the store when the wreck occurred, that he saw Lawrence Guthrie give an arm signal for a left turn when he was about 100 feet down the road from the entrance to the driveway, and that he kept his arm extended until he made the turn; that the truck was moving very slowly; that he saw the car dash around the bend, as the truck was turning in; and that the car hit the truck and knocked the truck back in the road. He testified that the car was running about 65 or 75 miles an hour.

It thus appears that there was a direct conflict in the testimony of the appellant and his witnesses and the testimony of Lawrence Guthrie and Emmett Guthrie. The conflict in the testimony created an issue of...

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6 cases
  • Thomas v. Global Boat Builders & Repairmen Inc., 55184
    • United States
    • Mississippi Supreme Court
    • January 8, 1986
    ...damaged his boat, the specific damage done, and the reasonable cost of repairs necessary to repair such damage. See: Frizell v. Guthrie, 222 Miss. 501, 76 So.2d 361 (1954); Bryan Bros. Packing Co. v. Grubbs, supra; Nail v. Hiers, 116 Ga.App. 522, 157 S.E.2d 771 (Ga.App.1967); Wylie v. Czapl......
  • Gore v. Patrick, 42541
    • United States
    • Mississippi Supreme Court
    • February 25, 1963
    ...98 So.2d 467. But a driveway leading off a highway to a store is not such an intersection contemplated in the statute. Frizell v. Guthrie, 222 Miss. 501, 76 So.2d 361. The roadway leading off to the south from Highway 18 known as the Gore-Diffley road is neither a private driveway such as t......
  • Stewart v. Davis
    • United States
    • Mississippi Supreme Court
    • November 28, 1990
    ...evidence that Old Mesa Road was a public way and of persuading the trier of fact that he was correct in this. See Frizell v. Guthrie, 222 Miss. 501, 76 So.2d 361 (1954). This is a function of the universal view that in a civil action the party asserting a claim bears the burden with respect......
  • Greyhound Corp. v. Townsend
    • United States
    • Mississippi Supreme Court
    • January 12, 1959
    ...Miss., 103 So.2d 861, is very similar factually, except that the damage in that case was for personal injuries. See also Frizell v. Guthrie, 222 Miss. 501, 76 So.2d 361. Neither can it be said judicially that the verdict was contrary to the overwhelming weight of the The appellant also cont......
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