Greer v. Pierce

• Decision Date: 20 March 1933
• Docket Number: 30336
• Citation: 147 So. 303,167 Miss. 65
• Court: Mississippi Supreme Court
• Parties: GREER et al. v. PIERCE

147 So. 303

167 Miss. 65

GREER et al. v. PIERCE

No. 30336

Supreme Court of Mississippi

March 20, 1933

Division A

Suggestion Of Error Overruled May 1, 1933.

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

Action by Miss Mabel Pierce against Mrs. Sylvia Greer and others. From the judgment, defendants appeal. Affirmed.

Affirmed.

Dunn & Snow, of Meridian, for appellants, Mrs. Sylvia Greer, and Mrs. Marjorie P. Griffin.

It is our contention that the trial judge should have sustained the motion of appellants to set aside the verdict and judgment and granted the appellants a new trial.

Mobile & Ohio Railroad Co. v. Johnson, 141 So. 581; Mobile & Ohio Railroad Company v. Bryant, 132 So. 539; Flowers v. Springer, 120 So. 198.

Where evidence supporting verdict is against weight of the evidence, trial judge may grant new trial, but cannot direct verdict for adverse party.

Newton v. Homachitto Lumber Co., 138 So. 564; Columbus & Greenville Railway Co. v. Buford, 116 So. 817; Mobile & Ohio Railroad Co. v. Bennett, 90 So. 113; McFadden v. Buckley, 53 So. 351; Fore v. A. & V. Ry. Co., 39 So. 493.

When Mrs. Griffin was about to enter the intersection she saw Toney one-half a block away, and by actual measurements that block was two hundred seventy feet in length; she had a right to anticipate Toney would drive his automobile within the law and with due regard and respect to her rights and the rights of other people in the intersection.

Clark v. Hughes, 99 So. 6; M. & O. R. R. Co. v. Bryant, 132 So. 539.

Chas. M. Wright and Russell Wright, both of Meridian, for appellant, John Toney.

Under the facts, as they appear in this record, the plaintiff and Toney were either engaged in a joint adventure, under circumstances where the negligence of Toney, if any, was imputable to the plaintiff; or, taking the facts most strongly in favor of the plaintiff, she was a mere licensee in the car of Mrs. Easterling, as far as Toney was concerned.

The true test of imputed negligence is whether his relation to the person whose negligence is sought to be imputed to him is such as would render a person liable in case another than himself were injured by the concurrent negligence of the driver and such person.

Cahill v. Cincinnati, N. O. & T. P. R. Co., 92 Ky. 345, 18 S.W. 2; Oliver v. Miles, 144 Miss. 852, 110 So. 666, 50 A. L. R. 357; Lucy v. John Hope & Sons Engraving Co., 45 R. I. 103, 120 A. 62.

It is submitted to this court that whether or not the passenger, plaintiff in this cause, was in charge of the automobile in such a capacity as to render her jointly and severally liable with the defendant Toney, in an action by any of the other parties injured by the collision by reason of the negligence of Toney, if any, would have been a jury question, under all the facts surrounding the character of control plaintiff was entitled to exercise, and was in fact exercising over the car.

Aycock v. Burnett (Miss.), 128 So. 100.

The question of contributory negligence of the plaintiff in riding with the defendant is a question for the jury to determine.

Weyen v. Weyen (Miss.), 139 So. 608; Y. & M. V. R. R. v. Lucken, 137 Miss. 592.

It is well settled that erroneous admission of evidence may be so fundamentally prejudicial that an instruction not to consider it will not sufficiently counteract the error.

Snead v. Commonwealth, 34 A. L. R. 550; Phillops v. Thomas (Wash.), 127 P. 97, 42 L. R. A. (N. S.) 582; Brown Land Co. v. Lehman (Ia.), 112 N.W. 185, 12 L. R. A. (N. S.) 88; Bank of Commerce v. Goos (Neb.), 23 L. R. A. 190; State v. Martin, 229 Mo. 120, 129 S.W. 881, Ann. Cas. 1912A.

The mere fact that the driver of an automobile is negligent in colliding with another automobile does not necessarily show that he is negligent towards an invited guest in his own automobile, for the two cases are entirely different so far as legal responsibility goes, and do not depend altogether upon the same facts or the same rules of law.

Cittie v. Bava (Cal. App.), 254 P. 299; Dei v. Bava (Cal. App.), 254 P. 306; Robertson v. Yazoo & M. V. R. Co. (Miss.), 118 So. 181; Cleary v. Eckart, 51 A. L. R. 576, 191 Wis. 114, 210 N.W. 267; 20 A. L. R. 1014; 26 A. L. R. 1425; 40 A. L. R. 1338; 47 A. L. R. 327.

The minority rule, which rule has been adopted in Georgia, Massachusetts, Washington, is that one riding by invitation and gratuitously in another's automobile cannot recover for the injury caused by the other's negligence in driving, unless it amounted to gross negligence.

Epps v. Parish, 26 Ga.App. 399, 106 S.E. 297; Harris v. Reid, 30 Ga.App. 187, 117 S.E. 256; Saxe v. Terry, 140 Wash. 503, 250 P. 27; Kloppfenstein v. Eads, 254 P. 854; Terlizzi v. Marsh, 154 N.E. 754; Dahl v. Moore, 161 Wash. 503, 297 P. 218.

In case of a joint adventure, the negligence of the driver is imputable to the one riding with him.

Campagna v. Lyles, 298 Pa. 527, 148 A. 527; Shirley v. American Auto Ins. Co., 163 Wash. 136, 300 P. 155; Miller v. Panhandle & S. F. R. Co. (Tex. Civ. App.), 35 S.W.2d 194; Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014; Perrin v. Wells (Mo. App.), 22 S.W.2d 863; Frigorser v. Shepse, 251 Mich. 121, 230 N.W. 926; Union Bus. Co. v. Smith (Fla.), 140 So. 631; Terry v. Smylie, 133 So. 666.

Reily & Parker, of Meridian, for appellee.

Our court has many times held that the testimony of a witness in position to know the truth of the facts testified about, is sufficient to sustain a verdict, even though there are many witnesses contradicting the testimony of such witness.

Davis v. Temple, 91 So. 689; Y. & M. V. R. Co. v. Beasley, 130 So. 499; G. M. & N. R. Co. v. Hudson, 107 So. 369; Columbus & Greenville R. Co. v. Lee, 115 So. 782.

The determination of questions of veracity is also the province of the jury, and the judge is equally prohibited from taking his individual judgment as the one to determine such conflicts and the reasonableness of the evidence.

Newton v. Lumber Company, 138 So. 564.

The judge did not find, or was not convinced, that the jury was influenced by passion or prejudice, but his overruling the motion for a new trial is his judgment that the finding of the jury was warranted by the testimony.

Cox v. Tucker, 97 So. 721; Davis v. Temple, 91 So. 689.

The evidence offered was sufficient to satisfy the jury.

We think that the appellant, John Toney, was in the employment at the time of this collision, of Mrs. Wyatt Easterling, and that the appellant, John Toney, and the appellee in this case, were fellow servants at the time of this collection. We do not think it is material that John Toney was not to be compensated for this service.

Beale & Strayhorn v. Clayborn, 120 So. 812.

The general rule is well settled that a servant may render himself liable for injury negligently inflicted by him on a fellow servant in the transaction of the master's business.

39 C. J. 1312; I. C. R. Co. v. Archer, 74 So. 135.

As we understand the law, the question of imputed negligence is involved where a third person is being sued, and the negligence of some party is concerned which is connected with the plaintiff as master and servant, or parties engaged in a joint enterprise, but as between two servants, each is liable for his own negligence, and the relation of one to the other has nothing to do with this liability.

O'Brien v. Woldson, 62 A. L. R. 436; John Spry Lumber Co. v. Duggan, 54 N.E. 1002; McCormack v. Nassau Electric Co., 46 N.Y.S. 230; Baxter v. St. Louis Transit, 78 S.W. 70; Scheib v. N.Y. City Ry. Co., 100 N.Y.S. 986; McKernan v. Detroit Citizens Street Ry. Co., 68 L. R. A.; I. C. R. R. Co. v. Archer, 74 So. 135; 42 C. J. 1074.

Argued orally by E. L. Snow and Russell Wright, for appellants, and by Marion W. Reily, for appellee.

OPINION

McGowen, J.

This is an action for damages for personal injuries received as a result of a collision between two cars at an intersection of a street and avenue in the city of Meridian, Mississippi. There was a substantial verdict for the appellee, and separate appeals by the appellants are prosecuted here.

Mrs. Easterling conducted a real estate agency in Meridian. Miss Pierce, the appellee, was employed by her, and her duties, in part, were to show customers houses for rent or sale. On the afternoon of the day of the accident, John Toney, one of the appellants, was in Mrs. Easterling's office on business of his own. Mrs. Easterling requested Miss Pierce to show two ladies, prospective customers, some houses, and asked Toney to drive her automobile on the tour of inspection. Miss Pierce, with the customers, got into the car and directed Toney to different points in the city to which they were to travel. She was on the back seat of the car, with the customers, while Toney was driving. At a point some distance from the scene of the accident, Toney was driving rapidly, and, upon Miss Pierce's calling his attention to a certain officer of the city, it appears that he reduced his speed. Miss Pierce, in conversation with the customers regarding the business in which she was engaged, did not observe anything unusual in the operation of the car until its entrance into the intersection of Sixteenth street and Twenty-Sixth avenue, when she realized that a collision was impending and braced herself for it; and, as a result of which, she was seriously injured internally.

Toney was driving south on Twenty-Sixth avenue, although he says he looked in different directions as he entered the intersection of the streets, the other car was not seen by him until they were "right together." He denied driving at an unusual rate of speed, and said at the time he crossed the intersection he did not see the other car, and that the other car was being driven at a very...