Jackson v. Smith, 47939

• Decision Date: 17 March 1975
• Docket Number: No. 47939,47939
• Citation: 309 So.2d 520
• Parties: C. E. JACKSON, Jr., et al. v. Eddie W. SMITH and the City of McComb, Mississippi.
• Court: Mississippi Supreme Court

Page 520

309 So.2d 520

C. E. JACKSON, Jr., et al. v. Eddie W. SMITH and the City of McComb, Mississippi.

No. 47939.

Supreme Court of Mississippi.

March 17, 1975.

Joe N. Pigott, McComb, for appellants.

Robert W. Brumfield, McComb, for appellees.

Before GILLESPIE, INZER and BROOM, JJ.

INZER, Justice:

Appellants-plaintiffs, Mr. and Mrs. C. E. Jackson, Jr. and their five minor children, brought suit in the Circuit Court of Pike County against Eddie W. Smith and the City of McComb seeking to recover damages for the death of Bruce Jackson, the seven year old son and brother of appellants who died as a result of a collision between an automobile driven by Eddie Smith and a bicycle upon which deceased was riding. A trial was had and at the conclusion of plaintiffs' case the court granted a peremptory instruction in favor of the City of McComb, and the jury returned a verdict in favor of the defendant Eddie W. Smith. A judgment was entered dismissing the suit with prejudice, hence this appeal. We affirm.

Since the jury resolved that conflicts in the testimony in favor of the defendant, the facts will be stated in the light most favorable to him. Eddie W. Smith, on June 23, 1971, was and had been for many years a policeman in the City of McComb, attaining the rank of Captain. The city assigned him a 1971 Chevrolet which was his duty to see that the car was properly maintained. The engine of the car was malfunctioning and on the morning of June 23, 1971, Smith drove the car to Davis Motor Company and picked up Fleet O'Quinn, a mechanic, to have him determine what was wrong with the car. Smith drove the car up Interstate 55 and on the way back to the city, Smith received a message that there had been an accident on Highway 51. Smith checked out the accident and was on his way to carry O'Quinn back to his place of business. Smith was driving east on Park Drive approaching the point where Wilson Street makes a T-intersection from the south with Park Drive. There is an embankment on the west side of Wilson Street where it intersects with Park Drive, which to some extent obscures the vision of persons going east on Park Drive. This is caused by the fact that Wilson Street slopes downward to intersect with Park Drive. There is a stop sign facing traffic entering Park Drive from Wilson Street. There is an overhead school zone sign across the intersection facing eastbound traffic on Park Drive. When school is in session this sign has blinking lights, but when school is not in session the lights are turned off and the area is not then considered a school zone. The lights had been turned off for the summer prior to the date of the accident. The speed limit in McComb is 30 miles per hour, except in school zones where it is 15 miles per hour. The car that Smith was driving was relatively new and had good tires. The weather was clear and the asphalt pavement was dry. As Smith approached the intersection he was driving at a speed of 25 to 30 miles per hour. At the same time Mrs. Philley was approaching the intersection from the east. When Smith was within about eight to ten feet of the intersection, he caught a glimpse of a small boy coming down the hill on a bicycle entering Wilson Street. Smith immediately swerved his vehicle to the left and put on his brakes in an attempt to avoid the collision, but he was unable to do so, and the boy on the bicycle struck the car just behind the right front bumper. Apparently, the force of the collision threw the child against the windshield of the car and he was carried about 80 feet before he fell to the pavement. The police car came to rest about 117 feet east of the point of impact.

Mrs. Philley testified as she approached the intersection meeting the police car, she had a better view of Wilson Street and she saw a small boy on a smill bicycle pedalling fast coming down the hill on Wilson Street on the west side approaching the intersection. She was driving between 30 and 40 miles per hour and as soon as she saw the boy on the bicycle, and realized that he was not going to stop before entering the intersection, she stomped her brakes, gripped the steering wheel, and headed to the right. She said that she realized that everything was so close that there was going to be a collision, because Smith had swerved his car to the left into her lane of traffic. She said everything happened instantaneously, 'just like in a second.' When her car came to rest she was completely off the pavement on the north side of Park Drive. On cross examination she stated that the police car turned into her lane of traffic and she presumed he applied his brakes. She did not know what kept him from hitting her car.

O'Quinn corroborated the testimony of Smith as to the speed and how the accident happened. These three people the were the only three living eye-witnesses to the accident.

Immediately after the accident Smith radioed for an ambulance and went back to where the boy was lying on the pavement. The boy was unconscious and in just a few minutes the ambulance came and carried the boy to the hospital. Smith followed the boy to the hospital where he learned that the child was Bruce Jackson. The child died two days later as a result of the accident.

Appellants argue several propositions for the reversal of this case, but we will only address ourselves to those...