Hankins v. Harvey

• Decision Date: 03 February 1964
• Docket Number: No. 42753,42753
• Parties: Mrs. Prima Vista HANKINS et al. v. Hence HARVEY and Lauderdale County Co-operative.
• Court: Mississippi Supreme Court

Page 63

160 So.2d 63

248 Miss. 639

Mrs. Prima Vista HANKINS et al. v. Hence HARVEY and Lauderdale County Co-operative.

No. 42753.

Supreme Court of Mississippi.

Feb. 3, 1964.

Ethridge, Minniece & Bordeaux, Meridian, for appellant.

Snow, Covington, Shows & Watts, Meridian, for appellee.

KYLE, Presiding Justice:

The appellants, Mrs. Prima Vista Hankins, Mrs. Carl McKinney, Jr., and Lawson A. Hankins, Jr., surviving widow and children of Dr. Lawson A. Hankins, Sr., deceased, filed suit in the Circuit Court of Lauderdale County against Hence Harvey and Lauderdale County Co-operative, a co-operative marketing association organized and existing under the laws of the State of Mississippi, as defendants, for the recovery of damages for the wrongful death of Dr. Hankins who was killed in an automobile accident which occurred on January 4, 1962.

The record shows that Dr. Hankins and his wife had left their home in Baytown, Texas, a few days before Christmas, 1961, to visit their son and his family in Taccoa, Georgia, and they were returning to their home in Baytown at the time of the accident. The automobile in which Dr. Hankins and his wife were riding was a 1961 Star Chief Pontiac, which was owned by Mrs. Hankins who was driving the car at the time of the accident. Mrs. Hankins was 71 years of age, and Dr. Hankins was 82 years of age. Dr. Hankins had suffered a heart attack sometime prior to 1960 and had retired from the practice of medicine. He had also sold his interest in a hospital which he had operated in Baytown for many years. Dr. Hankins and his wife left Taccoa about 8:30 A.M. on January 3 and arrived at the Holiday Inn at Meridian about nightfall. The distance from Meridian to Baytown, Texas, was approximately 500 miles and after a few hours rest at the motor court the couple resumed their trip homeward about 3:00 A.M. on January 4. They stopped at a gasoline service station in the City of Meridian to have their car serviced, and were advised by the service station operator to drive southwardly along U. S. Highway No. 11, which was a two-lane trunk-line highway with hardtop surface, to New Orleans. The accident occurred about an hour later on Highway No. 11 about three miles south of the Town of Enterprise, in Clarke County, Mississippi, when the automobile in which Mrs. Hankins and Dr. Hankins were riding collided with a truck which was owned by the defendant Lauderdale County Co-operative and was being operated by the defendant Hence Harvey. The truck had become disabled as a result of motor trouble and was parked on the west or southbound traffic lane of the highway at the time of the collision.

The plaintiffs alleged in their declaration that Dr. Hankins was killed as a result of the wrongful acts and negligence of Hence Harvey, while acting as the servant and employee of the defendant Lauderdale County Co-operative, and while he was about his master's business; that Hence Harvey, in violation of duties owed by him to the deceased and the general public, negligently, carelessly and unlawfully operated or caused to be operated on the above mentioned highway a large truck which was known or by the exercise of reasonable care should have been known to be not in good operating condition, and which was liable to break down and stop on the public highway that Hence Harvey carelessly and unlawfully stopped his vehicle on the main traveled portion of said highway at a time when it was practical to drive said vehicle off the highway and onto the shoulder thereof; that by parking said vehicle on the main traveled portion of the highway the defendants created a dangerous trap for other motorists lawfully using the highway, the terrain and contour of the highway being such that lights from vehicles approaching the standing truck would not illuminate the same or permit the same to be seen; and that the defendants failed to place flares, fusees and reflectors, or other signals, to the rear and in advance of the truck and upon the roadway side of the truck, as required by law.

In their answer the defendants admitted that Hence Harvey was acting for Lauderdale County Co-operative at the time the truck came to a stop on the traveled portion of the highway and at the time the collision occurred. The defendants, however, denied specifically the several acts of negligence alleged in the plaintiffs' declaration. The defendants averred in their answer that they did not know prior to the accident complained of that their truck trailer unit had any defect therein, and that up to the time the vehicle became disabled they considered the same roadworthy and without defect; that without fault or negligence on the part of either of the defendants the motor of the truck suddenly and without warning stopped at a time when the truck trailer unit was proceeding up a hill; that there was on the trailer a heavy load, which required motor power to move it, and the truck trailer unit could not be moved so long as the motor of the truck could not be run; that the highway ran uphill at the point where the motor became disabled, and the highway did not have sufficient shoulders to permit a loaded truck trailer unit to be pulled off the pavement and stopped on the shoulders. The defendants further averred that the truck trailer unit was equipped with fusees and had reflectors and electric lights thereon; and that immediately after trouble developed Harvey set the brakes on his truck and took flares and reflectors in hand and was proceeding to place them on the highway when the accident occurred. The defendants denied that it was practical or possible for Harvey to drive the truck trailer unit off the highway at the place where it was stalled or to move it onto the shoulder.

By way of defensive matter the defendants averred that the plaintiff, Mrs. Hankins, was driving at a high and dangerous rate of speed and failed to keep the automobile which she was driving under proper control; that she had driven around a curve at a high rate of speed and without keeping a proper lookout for other vehicles on the highway, and failed to see the defendants' truck trailer unit and the flares which had been placed on the highway; and that she failed to reduce her speed or apply her brakes. The defendants denied that any negligence on their part contributed to the accident complained of.

The case was tried at the October 1962 term of the court, and the jury returned a verdict for the defendants. The court overruled the plaintiffs' motion for a new trial, and from the judgment entered in favor of the defendants the plaintiffs have prosecuted this appeal.

The appellants have assigned and argued five points as grounds for reversal of the judgment of the lower court: (1) That the verdict of the jury was contrary to the overwhelming weight of the evidence; (2) that the court erred in granting the appellees' instructions which appear on pages 476 and 477 of the record; (3) that the court erred in refusing to grant the appellants' requested instruction which appears on page 457 of the record, and in granting the appellees' instruction which appears on page 475 of the record; (4) that the court erred in granting the appellees' instruction which appears on page 465 of the record; and (5) that the court erred in granting the appellees' instructions which appear on pages 469 and 470 of the record.

For a proper understanding of the errors assigned and argued as grounds for reversal of the judgment, it is necessary that we give a brief summary of the testimony offered on behalf of the respective parties.

The plaintiff, Mrs. Prima Vista Hankins, testified that the wreck occurred about 4:00 A.M.; that she was driving at a rate of speed of 50 to 55 miles per hour; that the road was full of curves, and she was not accustomed to driving in curves. She stated that she made one curve that looked 'pretty bad.' She went on to the next curve 'and it got steeper.' She followed the road and came upon the truck obstructing the highway in her lane of travel. When she saw the truck, she was right on it. She attempted to turn her car to the left, but she was unable to avoid a head-on collision. The lamps on her car were lighted at the time of the collision. She did not see a man in the roadway waving a flashlight, and she did not see the truck driver after the collision occurred. She was unable to get out of her car because of her injuries. Dr. Hankins had no pulse. The ambulance came after a long time, and the highway patrolman came, but no one else stopped at the scene of the accident so far as she knew. Both of her ankles were broken and one leg was broken, and she suffered other injuries. On cross-examination Mrs. Hankins stated that she did not know whether she had her bright lights or her dim lights burning just before the accident. She did not look at her speedometer any time after she left Meridian. She stated that, when she first saw the truck, she realized that she could not get around it. So far as she knew the lights on her car were burning when it ran into the rear end of the truck. She saw no marker lights or reflectors of any kind on the truck.

Hence Harvey, who was first called to testify as an adverse witness by the plaintiffs, and was later recalled for direct examination by his own attorney, testified that he was 55 years old and had worked for the Lauderdale County Co-operative as a truck driver about 12 years; that the truck which he was driving was a 1957 Chevrolet tractor-trailer combination unit, with the cab over the engine, and had a carrying capacity of 13 tons. Harvey stated that he had driven the truck to Louisiana sometime after December 15, and had picked up a load of salt to be transported back to Meridian; that while on his way to his destination in Louisiana he noticed the lights on his truck were dim, and he stopped at a motor vehicle service station and had his battery charged. After he had the battery charged he had no...