Graves v. Johnson

Decision Date04 October 1937
Docket Number32818
Citation179 Miss. 465,176 So. 256
CourtMississippi Supreme Court
PartiesGRAVES et al. v. JOHNSON et al

(Division B.)

1 AUTOMOBILES.

Where all existing physical facts are sufficient to give notice of barricade to motorist who collides therewith, failure to give cumulative notices does not aid motorist's case.

2 TRIAL.

In action against highway contractor for death of motorist who in clear daylight crashed into steel trailer barrier instruction predicating recovery on contractor's failure to observe duty to maintain danger signs at reasonably sufficient distances from barricade held erroneous as ignoring question whether all other existing physical facts were sufficient to give notice.

3 HIGHWAYS.

A traveler on a completed highway actually or impliedly accepted by proper public authorities and put into unrestricted use as highway has right to assume that highway is reasonably safe for travel and free from obstructions, and need not keep his eyes constantly fixed on path of highway or look far ahead for defects which should not exist, nor need he be absolutely required to exercise such extreme vigilance as to in all events see bumpers in road, or chain stretched across road, but traveler nevertheless must use ordinary care.

4 HIGHWAYS.

Completed and accepted roads are not required to be in such condition as to insure safety of reckless drivers.

5. AUTOMOBILES.

Driver must keep automobile under control and be alert for pedestrians and other vehicles on highway.

6. AUTOMOBILES.

Traveler, when he has knowledge or sufficient notice that highway is under construction, is bound to anticipate that at some near point usable portion of highway will end and portion actually under construction and unfit for use will begin, and must excercise vigilant caution to keep constant lookout for end of usable portion.

7. AUTOMOBILES.

A driver traveling on usable portion of highway under construction will be presumed to have seen what he should have seen in performance of his obligation of vigilant lookout.

8. AUTOMOBILES.

In action against highway contractor for death of motorist who in clear daylight crashed into steel trailer barrier, preponderance of evidence held to show that motorist knew or ought to have known that road was under construction.

9. AUTOMOBILES.

In action against highway contractor for death of motorist who in clear daylight crashed into steel trailer barrier, across highway under construction, preponderance of evidence held to show that motorist, if exercising required vigilance, could have easily seen barrier across road at point where usable portion of highway ended.

10. AUTOMOBILES.

In action against highway contractor for death of motorist who in clear daylight crashed into steel trailer barrier marking end of usable portion of highway under construction, in determining whether motorist, in exercise of care required of travelers on completed highway, could have timely seen barrier, not only warning signs or written notices, but all easily visible physical indications upon or alongside usable part of highway, including those at end and those shortly beyond end of usable part of highway, could be considered.

11. TRIAL.

A peremptory charge is not allowable where, looking solely to testimony in behalf of party against whom peremptory charge is requested, and taking that testimony as true, there is enough of facts testified to, along with reasonable inferences deducible therefrom in favor of such party, to support verdict for him.

12. NEGLIGENCE.

Plaintiff's instructions authorizing recovery despite contributory negligence and assessment of full damages in event of finding for plaintiff held violative of statutory requirement for proportionate diminution of damages (Code 1930, section 511).

13. EVIDENCE.

In ordinary civil case, parties generally may not support their position by offering testimony as to their good character or reputation, unless it is the issue.

14. EVIDENCE.

In action against highway contractor for death of motorist who crashed into steel trailer barrier, where contractor introduced evidence that motorist was intoxicated, evidence that motorist was careful driver, sober, and had good general reputation for sobriety, held not competent in rebuttal, since issue was intoxication, not character or reputation.

15. TRIAL.

In action against highway contractor for death of motorist who crashed into steel trailer barrier, where contractor introduced evidence that motorist was intoxicated, evidence that motorist was careful driver, sober, and had good general reputation for sobriety, was not admissible on issue of amount of damages, if admissible at all, unless plaintiff introduced such evidence in chief, not rebuttal, with clear statement at the time that it was offered solely on issue of damages.

Division B

APPEAL from circuit court of Humphreys county HON. S. F. DAVIS, Judge.

Action by Mrs. Montague Johnson, for herself and as next friend for others, against R. F. Graves and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Reversed and remanded.

Watkins & Eager, of Jackson, and W. D. Womack, of Belzoni, for appellants.

The trial court should have sustained appellants' separate motions to exclude and direct a verdict, and erred in refusing the peremptory instructions separately requested by appellants at the conclusion of all the evidence.

Section 5569, Code of 1930, as amended by Chapter 309, Laws of 1936; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Snyder v. Campbell, 145 Miss. 296, 110 So. 678; Frazier v. Hull, 157 Miss. 303, 127 So. 775; Roper v. Greenspon, 192 S.W. 149; Grosz v. Bone, 48 S.D. 65, 201 N.W. 871; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Gulfport & Miss. Coast Traction Co. v. Manuel, 123 Miss. 266, 85 So. 308; Walker v. Vicksburg, 71 Miss. 899, 15 So. 132; Elrich v. Schwaverer, 230 N.W. 902; Becker v. I. C. R. R. Co., 147 So. 378; Dee v. City of Peru, 174 N.E. 900; Thompson v. City of Houma, 76 F.2d 793; Nielson v. Christensen-Gardner, Inc., 38 P.2d 743; Thomas v. City of Lexington, 168 Miss. 107, 150 So. 816; 9-10 Huddy, Cyc. on Automobile Law, page 354; 7 McQuillin, Municipal Corporations, 216; 13 R. C. L. 440.

There is no duty to post notices and warnings when barrier itself gives ample and timely warning.

20 R. C. L. 34; District of Columbia v. Moulton, 182 U.S. 576, 21 S.Ct. 840, 45 L.Ed. 1237; Hubbard v. Concord, 35 N.H. 52, 69 Am. Dec. 520; Raymond v. Sauk County, 167 Wis. 125, 166 N.W. 29; Butcher v. City of Racine, 208 N.W. 244; Jones v. Collins, 59 N.E. 64.

To operate an automobile at such speed as unable to stop within distance of objects or obstacles ahead is want of ordinary care.

Raymond v. Sauk County, 167 Wis. 125, 166 N.W. 29; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 841; Frazier v. Hull, 157 Miss. 303, 127 So. 775; Christy v. Baruch Corp., 27 P.2d 660; Kimmelman v. McGovern, 199 N.Y.S. 76; Western Union Tel. Co. v. Stephenson, 36 F.2d 47.

Injury must be one which is reasonably foreseeable by contractor.

Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Columbus & Greenville R. R. Co. v. Coleman, 172 Miss. 514, 160 So. 277.

Judgments must be founded upon reasonable probabilities and not upon conjectures or possibilities.

Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Columbus & Greenville R. R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219.

Purpose of signs and signals is to furnish a warning. Elrich v. Schwaverer, 230 N.W. 902; Thompson v. Miss. Cent. R. Co., 175 Miss. 547, 166 So. 353.

The trial court erred in refusing the instruction requested by the appellant contractor peremptorily instructing the jury that appellees' decedent was himself guilty of negligence proximately contributing to his own fatal injuries.

Bridges v. Electric Ry. Light & Power Co., 86 Miss. 584; Hines Lbr. Co. v. Dickinson, 155 Miss. 674, 125 So. 93; Sec. 5569, Code of 1930, as amended by Laws of 1936; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Frazier v. Hull, 157 Miss. 310.

The trial court erred in overruling appellants' objections to the testimony of numerous witnesses with respect to the general reputation of the deceased as to sobriety.

Sec. 5579, Code of 1930; 10 R. C. L. 947, sec. 117; Leinkauf & Strauss v. Brinker, 62 Miss. 255; Harris v. Sims, 155 Miss. 207, 124 So. 325; 25 C. J. 544, sec. 152; Knights of Maccabees v. Sheilds, 156 Ky. 270, 166 S.W. 1043.

The trial court erred in overruling appellants' objections and permitting the appellant Graves to be interrogated with respect to the provisions and interpretation of the contract between the highway department and the contractor, and the question as to whether more damage would be sustained by a driver colliding with the steel trailer than if a wooden barrier was used.

Thompson v. Miss. Cent. R. Co., 175 Miss. 547, 166 So. 353.

The trial court erred in giving Instruction No. 1 requested by appellees. We submit the instruction is highly prejudicial in that it is wholly inapplicable to the theory of the case. As an abstract proposition it is the duty of a contractor to exercise reasonable care to provide reasonably suitable warning signs and barricades. The contractor is not required to take all reasonably necessary precautions for the protection and safety of the public.

The fatal defect in the instruction is in permitting the jury to find negligence on the part of the defendant contractor by reason of the failure to provide warning signs, or detour signs, whereas the evidence is without dispute that such signs were provided, and, furthermore, the evidence is without contradiction that either the presence or...

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