Gulf Refining Co. v. Miller

Decision Date26 March 1928
Docket Number26990
Citation116 So. 295,150 Miss. 68
CourtMississippi Supreme Court
PartiesGULF REFINING CO. et al. v. MILLER et al. [*]

Division A

1 AUTOMOBILES. Negligence of truck driver at intersection striking boy after he fell from truck on which he was riding held for jury.

In action for damages for the death of thirteen year-old boy resulting when he was struck by truck at street intersection after having fallen from rear of truck on which he was riding, evidence as to negligence of truck driver held sufficient to require submission of such issue to jury.

2. AUTOMOBILES. Instruction authorizing recovery for death of boy struck by truck if driver failed to keep proper lookout and operate truck at reasonable speed held erroneous under evidence.

In action for damages for death of boy struck by truck at street intersection after having fallen from truck on which he was riding, instruction authorizing recovery if truck driver could have avoided accident by keeping proper lookout and operating truck at reasonable rate of speed held erroneous, under evidence indicating care of driver in such particulars would have been of no avail.

3. DEATH. Instruction authorizing recovery by mother and brother of deceased minor for present value of deceased's life expectancy held erroneous (Hemingway's Code 1927, section 515).

In action by mother and brother of thirteen-year-old boy for damages for death, instruction authorizing recovery that deceased might have recovered as present value of life expectancy calculated from his majority held erroneous, under Hemingway's Code 1927, section 515 (Laws 1922, chapter 229), since recovery cannot be based on value of life expectancy, but on present value of any pecuniary advantage reasonably expected by plaintiffs.

4. DEATH. Value of decedent's life expectancy is not element of damages to decedent (Hemingway's Code 1927, section 515).

Value of decedent's life expectancy is not an element of damages to decedent for consideration in determining damages, under Hemingway's Code 1927, section 515 (Laws 1922, chapter 229).

HON. J. D. FATHEREE, Judge.

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

Action by Mrs. Mattie Miller and another against the Gulf Refining Company and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

The instructions directed to be reported are as follows:

Instruction No. 3.

The court charges the jury that while it is true that a person operating an automobile or truck has a right to use any part of a highway or street when he is not meeting another, or when another is not seeking to pass him from the rear, still he must use reasonable diligence and keep a lookout for approaching persons or vehicles, and if he fails to do so he is not in position to escape liability on the theory of impending necessity, and if you believe from a preponderance of the evidence that, had the defendant Van Reed approached the intersection of Eighth avenue and B street by slowing down, and had been on the proper side of the road, and had been operating the automobile truck in question at a reasonable rate of speed, and had he kept a proper lookout, he could have avoided the accident, then in that event, you should find for the plaintiffs.

Instruction No. 1.

The court instructs the jury for the plaintiff that should you find for the plaintiffs in this case, and find further that the deceased was not guilty of contributory negligence, you should award them such an amount, if any, as the jury may believe from a preponderance of the evidence in this case as will be just, fair, and reasonable compensation for the value of the services of Vardaman Hall Miller to his parent, up to the time of his majority, which includes all moneys you are reasonably certain that he would have earned up to that time, if any, provided you believe from a preponderance that he would have reached his majority and his parent would have also lived until that time; and also whatever sum, if any, the son himself might have recovered as the present value of his own life expectancy, calculated from his majority, provided you believe from a preponderance of the evidence that he would have lived until said time.

Reversed and remanded.

Amis, Dunn & Snow, for appellants.

For the purpose of this discussion we must accept the extreme most favorable to the plaintiffs; and in so doing it will be seen that the facts should be assumed to be that the oil truck was being driven at a rate of speed from fifteen to eighteen miles an hour, and that the deceased jumped or fell from the rear end of the Sharp truck in the direct path of the oil truck and from twelve to seventeen feet distant therefrom; that the truck was in good operating condition; that Reed was an experienced driver; and that he did all in his power to avoid the accident after the deceased fell or jumped into the street from the rear end of the Sharp truck. There was nothing to indicate to Reed that the boy was in the act of falling or that he intended to jump from the truck. In a single moment of time the position of the boy was changed from one of apparent safety to one of peril. Both trucks were being handled by the respective drivers in such manner that no collision or even near collision between them occurred. It was impossible for the oil truck to avoid running over the deceased even though the speed of the truck had not exceeded eight miles per hour at the time. Therefore after giving full faith and credit to the testimony most favorable to the plaintiffs, and after indulging every reasonable and legitimate inference to be drawn therefrom, it conclusively appears that the proximate cause of the injury to the deceased was not the negligence, if any, on the part of Van Reed in operating the truck, but that deceased was killed solely because he fell or jumped from the truck on which he was riding.

Proximate cause may be defined generally as "that which, in a natural and continuous sequence, unbroken by any new cause, produces an event, and without which the event would not have occurred. The proximate cause is that which is the nearest in the order of responsible causation. That which stands next in causation to the effect, not necessarily in time or space but in causal relation." Bouvier, and authorities cited. Billingsley v. R. R. Co., 100 Miss. 612, is directly in point on the proposition we are contending for in this case. The court there said: "What is or what is not the proximate cause of an injury seems to be incapable of any strict definition which will suit every case. Proximate cause is said to be a vexed metaphysical question; but it can be safely said that, in order to constitute a proximate cause, there must be causal connection between the injury and the negligence complained of." R. R. Co. v. Daniels, 135 Miss. 33, 99 So. 434; Howell v. Railroad Company, 75 Miss. 242; Freeman's notes to Gibson v. Delaware Canal Company, 36 Am. St. Rep. 802; Green, "Rationale of Proximate Cause;" Eastburn v. United States Express Co., 225 Pa. 33, 73 A. 977; Gordon v. Phila. Rapid Transit Co., 107 A. 811; Carlson v. Leonard, 200 P. 40; Bishord v. Engelbeck, 164 N.W. 203; Burlie v. Stephens, 193 P. 684; Whalen v. Dunbar, 115 A. 718; Kalinoski v. Viermann, 211 S.W. 723.

The instruction granted the plaintiff, the predicate of which is that it is the duty of the driver of an automobile to keep a lookout for persons and vehicles in the street, proceeds to tell the jury that a person failing to discharge this duty is in no position to escape liability on the theory of impending necessity. This cannot be the law. The facts here were that a truck was passing the intersection of the street through which appellant's truck was being driven. There was no other object or thing in the street at that time. Manifestly it was the duty of the driver of the oil truck to so handle it as that it would not collide with the other truck. This he did. What more could be required of him under the circumstances? Certainly it was not his duty to see a boy in the street and handle his truck in reference to such boy, when there was no boy there. The instruction requires, in effect, that the driver of the truck must anticipate the sudden falling of the boy from the truck and thereby, creating an emergency against which he must have beforehand guarded, failing in which he cannot escape liability on the ground that the unexpected happened and an unforeseen emergency arose. The vice of the instruction seems to us to be apparent, and under the peculiar facts of this case it was highly prejudicial.

The instructions granted for the plaintiffs on the measure of damages is erroneous. The instruction should have told the jury to award as fair and reasonable compensation the present value of the services of the decedent to his mother (including all moneys he would have earned) during his majority, after deducting the reasonable cost of his maintenance during that time, as shown by the testimony. The instruction as given omits these necessary qualifications and directs the jury to award the whole or gross value of the services and also all money he would have earned. R. R. Co. v. Watley, 69 Miss. 145; Ry. Co. v. Freeman, 36 Ark. 41; Ry. Co. v. Delaney, 82 Ill. 198, 25 Am. Rep. 308; Penn. Ry. Co. v. Lilly, 73 Ind. 352; Benton v. Ry. Co., 55 Ia. 496, 8 N.W. 330; Hopkinson v. Knapp & Spalding Co., 92 Ia. 328, 60 N.W. 653; Carnego v. Crescent Coal Co., 164 Iowa 552, 146 N.W. 38; Beach v. St. Joseph, 158 N.W. 1045; Garton v. Harmon, 152 Mich. 473, 116 N.W. 443; Borough of Birmingham v. Dorer, 3 Brewst. 69; Penn. Ry. v. Vandiver, 36 Penn. St. 298; Caldwell v. Brown, 53 Penn. St. 453; Ry. Co. v. Southwick (Tex. Civ. App.), 30 S.W. 592.

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