Gore v. Patrick, 42541

Decision Date25 February 1963
Docket NumberNo. 42541,42541
Citation150 So.2d 169,246 Miss. 715
PartiesDr. Albert L. GORE v. Houston PATRICK and Capitol Tobacco and Specialty Company.
CourtMississippi Supreme Court

W. E. Gore, Jr., R. G. Nichols, Jr., Jackson, for appellant.

Watkins & Eager, Lipscomb & Barksdale, Jackson, for appellee.

GILLESPIE, Justice.

The appellant, Dr. Albert L. Gore, was the plaintiff below, and the appellees, Houseton Patrick and his employer, Capitol Tobacco and Specialty Company, Inc., were the defendants below. Appellant sued appellees for personal injuries arising out of an automobile collision. The case was tried and the jury rendered a verdict of $5,000 in favor of plaintiff. Judgment was entered accordingly and the plaintiff appealed to this Court.

Appellant was traveling west on Highway 18 between Jackson and Raymond. Following appellant was a large truck; following the truck was the appellee Patrick driving an automobile; and another car was following Patrick. All four vehicles were traveling about 40 to 45 miles per hour in the west bound lane on said Highway 18. Patrick was waiting for a favorable place to pass the large truck. When he reached the crest of a hill he could see that the road was clear of traffic for about one-half mile ahead of him. He signalled to the car behind that he was going to pass the truck, blew his horn, increased his speed to about 55 miles an hour, and turned into his left lane in order to pass the truck. When Patrick got along side the truck he saw appellant's Volkswagen ahead of the truck, and after he had observed two blinks of the left turn light on the Volkswagen, it turned sharply to the left toward the entrance to a road leading off to the south. Patrick applied his brakes but was unable to stop and struck the side of the Volkswagen, knocking it a considerable distance into the ditch on the south side of the highway. Appellant was thrown out of the Volkswagen and seriously injured.

The main conflict in the testimony was between the testimony of appellee Patrick and appellant. According to Patrick's testimony, the appellant cut at a sharp angle immediately in front of the Patrick automobile, rendering it impossible to avoid a collision. According to appellant, he made a gradual turn to the left. Appellant did not contend that he made any special effort to determine whether any vehicles were following the large truck which was behind him. He admitted that his primary concern was the truck which he concluded was far enough behind him so as not to interfere with his left turn. There was some conflict with reference to whether appellant gave a left turn signal at a reasonable distance before he reached the place he was to turn off the highway. He stated he had his left turn signals on for a reasonable distance. This is disputed by the truck driver who says he did not see the signal. Patrick states he saw the signal, but only two blinks immediately before appellant made his left turn.

Appellant assigns as error the action of the lower court in refusing plaintiff's instruction No. 6, which, in effect, told the jury that the defendant Patrick was negligent if he attempted to pass plaintiff's vehicle within one hundred feet of an intersection.

The intersection into which appellant was turning when struck by Patrick's automobile is a road leading south from Highway 18. It does not go north from the highway. It is a public road, but is not marked by the highway as an intersection. In that area the other intersections are marked by appropriate signs. The appellee Patrick testified that he traveled that highway regularly and had never noticed the Gore-Diffley Road, which is the name of the side road where the collision took place. The road extends south .04 miles south and leads to two houses. It formerly connected to the Siwell Road but part is now unused because the bridges are out of repair.

Sec. 8185, Miss.Code 1942, makes it unlawful to overtake and pass another vehicle by driving to the left side when approaching within one hundred feet of any intersection. When the proof is sufficient, it is proper to instruct that the violation of this statute is negligence. Clark v. Mask, 232 Miss. 65, 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 that involved in Guthrie, nor an intersecting road marked as an intersection such as involved in Mask. The instruction complained of did not attempt to define an intersection and did not present to the jury a factual issue whether the entrance of the Gore-Diffley road is an intersection.

The reasons for the statute prohibiting overtaking and passing a vehicle at or near an intersection is obvious, but the legislature must be presumed to have intended a sensible restriction on highway traffic. Statutes must be given a sensible construction so as to be practical or workable. Teche Lines, Inc. v. Danforth, 195 Miss. 226, 12 So.2d 784. We are of the opinion that an intersection that is not marked by signs and which would not be observed by a reasonably careful operator of a motor vehicle is not an intersection within the meaning of the statute. Any other interpretation of the statute would not be sensible, nor would it be practical to obey. It would not be reasonable to require a motorist to observe this statute in respect to intersections which are not marked by signs or observable by the operator of a vehicle in the exercise of reasonable care. We hold that the court was not in error in refusing said instruction.

Appellant assigns as error the granting of the following instruction at the request of appellees:

'The court instructs the defendants that even if you should find from a preponderance of the evidence in this case that the defendants were guilty of negligence which contributed to the plaintiff's injuries, and you must believe from a preponderance of the evidence that the defendants were guilty of negligence which contributed to the plaintiff's injuries before the plaintiff is entitled to recover anything, then if you further believe from the evidence that the plaintiff was guilty of any negligence which contributed in any manner to the collision then you will reduce the damages which you...

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16 cases
  • Peoples Bank and Trust Co. v. Cermack, 92-CA-00117-SCT
    • United States
    • Mississippi Supreme Court
    • June 1, 1995
    ...on the part of the appellant and allowed the jury to determine questions of law as well as questions of fact. Gore v. Patrick, 246 Miss. 715, 723, 150 So.2d 169, 171 (1963). Because the record did not support a negligence instruction and because the jury was given deficient instructions as ......
  • Miles v. Duckworth, 55124
    • United States
    • Mississippi Supreme Court
    • November 13, 1985
    ...Rayborn v. Freeman, 209 So.2d 193 (Miss.1968); Yelverton v. State, 191 So.2d 393 (Miss.1966); Gore v. Patrick and Capitol Tobacco and Specialty Co., 246 Miss. 715, 150 So.2d 169 (1963). We distinguish the cited cases from the case sub judice. While they correctly state the law, the Instruct......
  • Federal Compress & Warehouse Co. v. Swilley, 43180
    • United States
    • Mississippi Supreme Court
    • February 1, 1965
    ...also list of cases involving instructions which fail to tell the jury what facts would constitute negligence cited in Gore v. Patrick, 246 Miss. 715, 150 So.2d 169 (1963). We are of the opinion that the errors in said instruction are not cured by any other instruction given the parties. Gin......
  • Draughn v. Lewis, 42913
    • United States
    • Mississippi Supreme Court
    • March 9, 1964
    ...such under the established law of the land.' See also Yazoo & M. V. R. Co. v. Aultman, 179 Miss. 109, 120, 173 So. 280." See Gore v. Patrick, Miss., 150 So.2d 169. We believe these instructions failed to tell the jury what facts would constitute negligence on the part of appellants. It allo......
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