Gates v. Green

• Decision Date: 21 October 1968
• Docket Number: No. 44999,44999
• Citation: 214 So.2d 828
• Parties: Merline GATES v. Harry J. GREEN and Mrs. Katherine M. Woolverton.
• Court: Mississippi Supreme Court

Page 828

214 So.2d 828

Merline GATES v. Harry J. GREEN and Mrs. Katherine M. Woolverton.

No. 44999.

Supreme Court of Mississippi.

Oct. 21, 1968.

Walter M. O'Barr, Okolona, Woodrow W. Brand, Jr., Houston, for appellant.

Mitchell & Rogers, Tupelo, for appellees.

JONES, Justice:

This suit was filed in the Circuit Court of Chickasaw County by Merline Gates against Mrs. Katherine M. Woolverton and Harry J. Green. The basis of the action was alleged negligence arising from an automobile collision in the intersection of North Green Street and Franklin Street in the City of Tupelo (Lee County) about 3:30 p.m., July 4, 1966, in which appellant was injured. The trial resulted in a judgment for the sum of $3,000 against the appellee, Harry J. Green, and a finding in favor of the other appellee, Mrs. Katherine M. Woolverton. The appellant appeals as against both appellees. We affirm the case as to the appellee, Mrs. Woolverton, and reverse and remand without prejudice for a new trial on damages alone as to Appellee Green.

The issues presented to us are: (1) whether appellant was entitled to a peremptory instruction on liability against both appellees and particularly Mrs. Woolverton, (2) whether Mrs. Woolverton was entitled to a sudden emergency instruction, and (3) whether the verdict against Green is inadequate.

Jurisdiction was had in Chickasaw County because the appellee, Green, was a resident there. Mrs. Woolverton was a resident of Lee County.

While we do not recite all the facts, these are sufficient insofar as the issue of Mrs. Woolverton's liability is concerned:

Green was in Tupelo with his car, and at the request of appellant, he and two other men were carrying her and her friend to a swimming pool. They drove north along Green Street which extends generally in a north and south direction. Franklin Street extends generally east and west and intersects Green Street at a right angle.

Mrs. Woolverton left her place of employment to go home, traveling west on Franklin Street, and reached the intersection about the same time as Green and the collision occurred in the intersection.

An electric traffic signal controls the flow of traffic at this intersection. Green said as he approached the crossing he had the green light, but that it started to change just as he entered the intersection. Mrs. Woolverton testified that as she approached the intersection she looked at the light once and it was green, and that as she got nearer she looked again and that it was green on her side when she entered the intersection. At one point in her testimony she said that she and the Green car entered the intersection about the same time. Later she said she did not see the Green car until it was about two steps from her. The collision occurred in the north or northeastern part of the intersection and as the cars collided, according to the proof Green's car turned or slid and both cars went into the northwest corner of the intersection where there was another car which, headed south on Green Street, had stopped for the red light.

In determining whether a peremptory instruction should have been given against Mrs. Woolverton, we are required to look only to the testimony in her behalf and taking it as true, together with all reasonable inferences which could be drawn therefrom favorable to her, decide if thereby a verdict for her would be sustained; if so, a directed verdict should not be given. Jobron v. Whatley, 250 Miss. 792, 168 So.2d 279 (1964); Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 141 So.2d 226 (1962); Buntyn v. Robinson, 233 Miss. 360, 102 So.2d 126 (1958).

Appellant, a guest in Green's car, testified that as Green approached the intersection he was traveling forty or fifty miles per hour. Mrs. Woolverton said she was going around fifteen or twenty miles per hour as she approached the intersection. She claimed to have the green light when she entered the intersection and was corroborated in this claim by the fact there was a car headed south on the north side of the intersection of Green Street which had stopped for the red light. Some of the people in the stopped car testified the light was green for Mrs. Woolverton when she entered and that Green ran the red light. Witnesses sitting on a porch of a house near the intersection said Mrs. Woolverton had the green light when she entered. Green testified the light started to change just as he entered the intersection.

It was sought to hold Mrs. Woolverton liable peremptorily because she testified she did not see the Green car until it was about two steps from her. On this testimony, appellant, Gates, argues that Mrs. Woolverton convicts herself of not keeping a proper lookout and that since the evidence is the collision occurred north of the center of the intersection, Green was bound to have first entered. As to this, the appellant herself said Green was traveling at least twice as fast as Mrs. Woolverton, which could explain the place of the happening.

Appellant relies on the law as stated in such cases as: Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 141 So.2d 226 (1962); Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461 (1952); Robinson v. Colotta, 199 Miss. 800, 26 So.2d 66 (1946).

These cases announce the law as to lookout and control of the car upon the highway, and the law as to intersections on the highway or elsewhere without traffic lights or signals or officers directing traffic, and do not consider Sections 8157 or 8158 of the Mississippi Code 1942 Annotated (1956) which read:

Section 8157.

Whenever traffic is controlled by traffic-control signals exhibiting the words 'Go,' 'Caution,' or 'Stop,' or exhibiting different colored lights successively one at a time the following colors only shall be used and said terms and lights shall indicate as follows:

(a) Green alone or 'Go.'

1. Vehicular traffic facing the signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. But vehicular traffic shall yield the right-of-way to other vehicles and to pedestrians lawfully within the intersection at the time such signal is exhibited.

(b) Yellow alone or 'Caution' when shown following the green or 'Go' signal.

1. Vehicular traffic facing the signal shall stop before entering the nearest crosswalk at the intersection, but if such stop cannot be made in safety a vehicle may be driven cautiously through the intersection.

(c) Red alone or 'Stop.'

1. Vehicular...