Gough v. Harrington

• Decision Date: 18 April 1932
• Docket Number: 29928
• Citation: 141 So. 280,163 Miss. 393
• Court: Mississippi Supreme Court
• Parties: GOUGH v. HARRINGTON et ux

141 So. 280

163 Miss. 393

GOUGH v. HARRINGTON et ux

No. 29928

Supreme Court of Mississippi

April 18, 1932

Division A

1 AUTOMOBILES.

Evidence regarding automobile's speed at point several hundred yards from point of collision held properly excluded.

2 EVIDENCE.

It is common knowledge that, during peak hours, on many right of way streets there is scarcely moment without approaching automobile being in sight of intersections.

3 AUTOMOBILES.

Ordinances do not confer right to proceed at unslackened speed on right of way streets when within sight of crossing before another automobile enters intersection.

4. AUTOMOBILES.

Motorist on right of way street must have due regard for safety of those having first right to enter intersections.

5. AUTOMOBILES.

Motorist on right of way street may proceed only when arriving at intersection at approximately same time as vehicle on cross street.

6. TRIAL. Instruction regarding crossing right of way street held erroneous because not leaving jury "free to determine whether plaintiff was negligent in speeding up.

The instruction was in substance that, if plaintiff was on west side of or at center of right of way street, and gave his motor more gasoline in effort to speed up automobile and pass in front of defendant's automobile, and that such act on plaintiff's part and his failure to stop automobile or use other reasonable means to avoid accident was sole proximate cause thereof, it was duty of jury to return verdict in favor of defendant.

HON. J. D. FATHEREE, Judge.

APPEAL from the circuit court of Lauderdale county, HON. J. D. FATHEREE, Judge.

Action by R. K. Gough against Mr. and Mrs. J. S. Harrington. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Gabe Jacobson and Chas. B. Cameron, both of Meridian, for appellant.

Motorist on right of way street under ordinances has no right of way at intersection, unless he arives at approximately same time as vehicle on cross street.

Myers v. Tims, 138. So. 578.

The giving of the following instruction was error:

The court instructs the jury for the defendants, that if you believe from all the evidence in the case the plaintiff drove his car into the intersection of "B" street and 22nd Avenue, and while he was on the west side of or at the center of 22nd avenue, he realized there was danger of an accident occurring between his car and the car of the defendant, if he drove his car on to the east side of the center of 22nd avenue, it then became and was the duty of the plaintiff to stop his car, or use other reasonable means to avoid an accident, and not to try to cross or pass in front of the defendant's car, and if you further believe from the evidence that the plaintiff under such circumstances gave his motor more gasoline in an effort to speed up his car and to pass in front of the defendant's car, and that such act on the part of the plaintiff and his failure to stop his car or use other reasonable means to avoid the accident, was the sole proximate cause thereof, it will be your duty to return a verdict in favor of the defendants.

The question as to whether this act was negligence or not was purely and simply a question of fact for the jury. Not so by the terms of this instruction--a peremptory to the effect that if he did so operate his car and that same was the sole cause of the accident, then no liability existed and verdict should be for the defendants.

It is beyond the power of any municipal council to grant in their socalled right of way ordinances any such privileges as are today being asserted by the average of the drivers along right-of-way streets. The only right that these ordinances give, or validly can give, is this: When a vehicle traveling on a right of way street arrives at the intersection of a cross street at approximately the same time that a vehicle on the cross street arrives at the point of intersection, then the vehicle on the right of way street has the privilege to proceed, and this is the extent of the rule.

Myers v. Tims, 138 So. 578.

Marshall Amis, and Dunn & Snow, all of Meridian, for appellees.

The speed of a car when five hundred yards away from the point of collision is too remote to be relevant to the issues.

Stevens v. Potter, 209 Ky. 705, 273 S.W. 470.

The court did not err in granting instructions on behalf of the appellees on account of said instructions given the right of way to appellee's car regardless of which car arrived at the intersection first.

The ordinance involved in Myers v. Tims, 138 So. 578, were different from ordinances involved herein.

The decision holding that the Gulfport Ordinances granted the right of way to the car on 13th street only in cases where the cars arrived at the intersection at or approximately at the same time is clearly a reasonable and proper interpretation of the language used in the ordinance and is in accord with the weight of authority.

58 A.L.R., pages 1199, 1201.

Since the fair meaning of the Gulfport Ordinance was that declared by this court there was not involved in the case any question of the construction and effect of municipal traffic regulations in general, not any question of the limits and extent of the power of the municipal authorities to enact such ordinances.

Section 5(a) of the Meridian Traffic Ordinance provides that under certain conditions a particular car shall have the right of way provided both vehicles reach the intersection at the same time. This is the rule announced in the case of Myers v. Tims, section 5(b) of the Ordinance then names certain "boulevards" or "right of way streets," and provides that vehicles on such boulevards shall have the right of way over vehicles crossing same. This is substantially the wording of the Gulfport Ordinance down to this point, and if the ordinance had stopped here the case of Myers v. Tims, would have been applicable. But, sub-section C amplifies and defines exactly the duties of the driver on the cross street. It says: "and the vehicles entering or crossing any boulevard or dangerous crossing shall stop before entering or crossing same and proceed with caution.

It is inescapable that this ordinance does not give the driver on a cross street the right to cross a boluevard without stopping merely because he has reached the intersection ahead of the driver on the boulevard. The unequivocal words of the ordinance are that he must stop and proceed with caution. Certainly they can mean nothing less than that he shall not enter the intersection unless and until it is reasonably safe to do so, taking into consideration the distance and speed, within lawful limits, of all cars approaching on the boulevard.

Goldman v. Stern Bros., 201 N.Y.S. 905; Kilroy v. Justrite Mfg. Co., 209 Ill.App. 499; Belden v. Roberts, 1 La. App. 512; Stern v. Yellow Cab Co., 2 La. App. 273; Eisworth v. Eaton, 2 La. App. 363; Uzzo v. Torres, 3 La. App. 292; Johnson v. Jahncke Service, 7 La. App. 348; Wimbish v. Lowrey, 7 La. App. 708; Heidle v. Baldwin, 161 N.E. 44 (Ohio).

It is familiar law that a violation of a municipal traffic regulation constitutes negligence.

Snyder v. Campbell, 145 Miss. 287, 110 So. 678.

Municipalities are authorized by ordinance, to "prescribe the traffic rules within the corporate limits of the municipality, and regulate the speed and fix the speed limit at which motor vehicles may be operated.

Sec. 5568, Code of 1930.

The "Jay-Walking Ordinance" of Laurel was a reasonable exercise of this power to regulate traffic.

Snyder v. Campbell, 145 Miss. 287, 110 So. 678.

Ordinances requiring the vehicle on a cross street to stop before entering a boulevard or right of way street have been expressly approved as valid and reasonable traffic regulations.

Ex parte Wilchar, 278 S.W. 850; Hammel Dry Goods Co. v. Hinton, 216 Ala. 127, 112 So. 638.

It is true that a man when suddenly confronted with an emergency is not held to, the exercise of the same calm judgment which he ought to exercise when not under the excitement occasioned by the sudden danger.

On a close analysis of the instruction complained of for the reason above set out we find that any defect which it may have as to the first portion is wholly cured when we read the whole instruction. Regardless of any faulty statement of the duty of the appellant, the instruction closes with the injunction to the jury that if they believe from the evidence that the act or failure to act on the part of the appellant was the sole proximate cause of the collision that they would return a verdict for the appellees.

Argued orally by Charles B. Cameron, for appellant, and Marshall Amis, for appellee.

OPINION

Cook, J.

The appellant, R. K. Gough, sued Mr. and Mrs. J. S. Harrington for damages for...