Hughes v. W & S Const. Co.

• Decision Date: 13 February 1967
• Docket Number: No. 44256,44256
• Citation: 196 So.2d 339
• Court: Mississippi Supreme Court
• Parties: James Willis HUGHES, Administrator of the Estate of Edith Rowe Hughes et al. v. W & S CONSTRUCTION COMPANY.

Page 339

196 So.2d 339

James Willis HUGHES, Administrator of the Estate of Edith Rowe Hughes et al. v. W & S CONSTRUCTION COMPANY.

No. 44256.

Supreme Court of Mississippi.

Feb. 13, 1967.

Thompson, Alexander & Crews, Jackson, Crawley & Ford, Kosciusko, for appellants.

Watkins & Eager, Elizabeth Hulen, James A. Becker, Jr., Jackson, for appellee.

ROBERTSON, Justice:

James Willis Hughes, Administrator of the Estate of his wife, Edith Rowe Hughes, on behalf of himself and their children, appealed from a judgment of the Circuit Court of Attala County, Mississippi, in favor of the Defendant, W & S Construction Company, based upon a jury verdict for the defendant.

About 9:00 P.M., on September 14, 1964, Appellant Hughes and his wife were returning from Starkville, Mississippi, in their 1964 Cadillac Convertible. As he drove through a heavily wooded section of the Natchez Trace, a stray Black Angus cow suddenly loomed up in front of the car. He could not avoid hitting the cow and when he did so, he lost control of the car which skidded down a steep embankment and finally hit a tree. Mrs. Hughes was dead when the car came to rest.

As administrator of the estate, Appellant Hughes sued the Appellee, W & S Construction Company, for damages for the wrongful death of his wife alleging that appellee carelessly and negligently constructed a cattle gap that was not strong enough to contain cattle or that appellee carelessly and negligently left this cattle gap down and thus allowed some cattle to get out of the pasture.

About March 16, 1964, appellee had entered into a contract with the City of Kosciusko to construct two sewage lagoons for the City. In connecting with one of the lagoons, it became necessary to lay a sewer line across a cattle pasture alongside the Natchez Trace belonging to Mattox and Rhodes, and an easement across their lands was secured by the City of Kosciusko. Appellee's foreman and a work crew cut the four-strand barbed-wife fence at a tree and attached the loose ends of the wire to a movable post. They then put two loops of barbed-wire around the tree. This constituted a cattle gap or gate, which could be opened by removing the loops of wire from each end of the movable post and closed by inserting the two ends of the post in the loops of wire around the tree.

The appellee's foreman, Walter S. Ables, and workmen testified that each time they entered and left the pasture they carefully closed the cattle gap. There was no testimony to the contrary.

William B. Rhodes, who with C. D. Mattox, owned the cattle, testified that some of their cattle were missing on Sunday afternoon, August 16th, 1964. Early Monday morning, August 17th, they began to search for their cattle and were able to round up some of them, but were not able to locate all that had escaped. Rhodes testified that on August 17th, he found the cattle gap down and completely pulled around to the side. He did not know how the cattle gap had gotten down or who had pulled it around to the side. Rhodes arrived at the scene soon after the accident and identified the cow that was hit and killed as his cow from a vaccination tag attached to her ear.

After the Plaintiff-Appellant rested, the Defendant-Appellee put on Walter S. Ables as its witness. He testified that the last time his crew opened and closed the cattle gap was on August 4th, 1964, and that they then moved from Lagoon No. 2 to Lagoon No. 1. He again stated that he personally saw that the gap was properly closed. Most of the work crew testified that the August 4th, 1964, occasion was the last time they were at the cattle gap, and that it was properly fastened and closed at that time.

We repeat that the cattle were first missed from the pasture on Sunday, August 16th, 1964. The fatal accident occurred on the night of September 14, 1964, about a month after the cattle escaped.

Appellant assigned as error the giving of two instructions dealing with negligence of the appellant in the manner in which he drove his car. These instructions were:

INSTRUCTION NO. 5 FOR DEFENDANT

'The Court instructs the jury for the defendant, W & S Construction Company, Inc., that the driver of a vehicle must operate said vehicle so as to be able to stop within the range of his vision, and he must also drive said vehicle in a manner that he can actually discover an object, perform the manual acts necessary to stop and bring his vehicle to a complete halt, if necessary, to avoid collision with objectis or animals on the highway, and if you believe from the evidence in this case that James Willis Hughes, the husband of Mrs. Edith Rowe Hughes, was not driving his vehicle so as to be able to stop within the range of his vision and thus avoid colliding with the cow, and thereafter losing control of his vehicle, causing it to strike a tree of the highway with great force, then, in that event, Mr. Hughes was negligent, and if you further believe from the evidence in this case that such negligence, if any, was the sole proximate cause of the accident and resulting death of Mrs. Edith Rowe Hughes, then it is your sworn duty to find for the defendant, W & S Construction Company, Inc.'

INSTRUCTION NO. 12 FOR DEFENDANT

'The Court instructs the jury for the defendant, W & S Construction Company, Inc., that if you find from the evidence in this case that immediately prior to the accident complained of herein, that James Willis Hughes was operating his vehicle at such a rate of speed that he could not stop the vehicle to avoid collision with objects within the range of his vision, then as a matter of law, he was negligent; and if you further believe from the evidence that such negligence, if any, was the sole proximate cause of the accident and resulting death of Mrs. Edith Rowe Hughes, then it is your sworn duty to find for the defendant, W & S Construction Company, Inc.'

Appellant contends that similar instructions were roundly condemned in the case of Bryan Bros. Packing Co. v. Grubbs, 251 Miss. 52, 168 So.2d 289 (1964). There is a vital difference between the two cases. The Bryan Bros. Packing Co. case arose out of an accident that happened in broad daylight; the instant case resulted from a fatal accident occurring at night.

In the case of Frazier v. Hull, 157 Miss. 303, 310-311, 127 So. 775, 777 (1930), this Court said:

'* * * it is negligence to drive an automobile, at night, at a greater rate of speed than will permit the driver thereof to avoid injury to persons or vehicles when they come within the range of the lights on the front of the automobile. 1 Berry, Automobiles (6th Ed.), § 186; 1 Blashfield's Cyc. of Automobile Law, page 350, § 17; 14 A.L.R. 794, note. Had the appellee observed this rule, the accident would not have occurred; and, as her own evidence disclosed that she did violate it, the jury should not have been permitted to find that her negligence did not contribute to the appellant's injury.' (Emphasis added.)

Other cases explaining the different rule of negligence as to night driving are: Robertson v. Welch, 242 Miss. 110, 134 So.2d 491 (1961); Jackson City Lines v. Harkins, 204 Miss. 707, 38 So.2d 102 (1948); Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840, 841 (1931). Another night visibility case is Kettle v. Musser's Potato Chips, Inc., 249 Miss. 212, 162 So.2d 243 (1964).

However, it is not necessary for us to decide whether these two instructions were properly or erroneously granted, because the appellant's case was based squarely upon the negligence of the defendant in carelessly or negligently constructing the cattle gap or in carelessly or negligently leaving the cattle gap down and allowing...