Jefferson v. Magee, 44633

• Decision Date: 20 December 1967
• Docket Number: No. 44633,44633
• Citation: 205 So.2d 281
• Parties: Billy JEFFERSON, Defendant-Appellant, v. Ewell MAGEE, Plaintiff-Appellee.
• Court: Mississippi Supreme Court

Page 281

205 So.2d 281

Billy JEFFERSON, Defendant-Appellant, v. Ewell MAGEE, Plaintiff-Appellee.

No. 44633.

Supreme Court of Mississippi.

Dec. 20, 1967.

Satterfield, Shell, Williams & Buford, Jackson & Yazoo City, for appellant.

Holmes & Cortright, Henry, Barbour & DeCell, Yazoo City, for appellee.

PATTERSON, Justice.

This suit is the result of a car-bus collision in Sunflower County on November 2, 1962. Billy Jefferson, one of the defendants, was the driver of the automobile. Ewell Magee, the plaintiff, was the driver of the bus. The trial resulted in a jury verdict for the plaintiff in the sum of $85,000 which was reduced by way of remittitur by the trial judge to $60,000.

Plaintiff assigns as error on cross appeal the granting of the remittitur. Jefferson, one of the defendants below, assigns as error, among other things, the action of the court in overruling his motion for a change of venue ot Washington County, his place of residence. The Illinois Central Railroad Company, one of the defendants below, was granted a peremptory instruction at the conclusion of the case and does not participate in this appeal. This opinion considered only the assignment of error relating to venue as, in our opinion, it is dispositive of the suit.

The declaration was filed in Yazoo County, Mississippi, against Billy Jefferson and the Illinois Central Railroad Company. It charged defendant Jefferson with negligently driving his automobile into the rear of a Greyhound bus operated by the plaintiff. It alleges that the collision occurred on Highway 29 West in Sunflower County at a point where such highway was intersected by the railroad tracks of the defendant Illinois Central Railroad Company and at a time when the bus was stopped at this railroad crossing. It alleges specifically as to the last named defendant the following:

Plaintiff alleges that prior to and at the time of the accident herein complained of the defendant Illinois Central Railroad Company was guilty of negligence resulting directly and proximately in the aforesaid accident and in plaintiff's injuries and damages in that said defendant corporation had negligently failed to warn approaching motorists of the presence of its railroad tracks as same crossed said highway by negligently failing to erect warning lights or signals and by negligently failing to erect and maintain reasonably adequate warning signs to advise the traveling public of the presence of said railroad crossing; that said corporate defendant was further guilty of negligence in that said defendant had allowed and permitted such warning signs as were present at said crossing to become old and wealther worn and not readily visible and that said defendant had failed in all of the foregoing particulars although said defendant knew or should have known that its railroad tracks at the point of the accident traversed a heavily traveled state highway and that motorists using said highway because of the peculiar situation and the terrain and the absence of adequate warning signs or signals are apt to be unaware of the presence of said railroad tracks at said location.

The plaintiff asserts that the above-enumerated negligence, combined with that of the other defendant, resulted in his injury for which suit is brought.

Jefferson moved the court for an order transferring the cause to the proper venue, the Circuit Court of Washington County, Mississippi, and a hearing was had thereon prior trial on the merits. In such motion he set out that he was a resident citizen of Washington County; that the accident occurred in Sunflower County; that the declaration stated no cause of action against the railroad company; that the allegations of the declaration pertaining to the railroad company were totally without foundation in fact; and finally, that the alleged cause of action against the railroad company was not asserted in good faith, but solely for the purpose of fixing venue in Yazoo County unlawfully and in derogation of the rights of the movant to be afforded a trial in the county of his household and residence. In support of this motion Jefferson testified that he was familiar with the highway and its intersection by the railroad as he was reared in the town of Inverness which is about a mile and a half from this crossing; and that for the last eleven years he has traversed the railroad crossing on an average of four times a week in his business, even though he now lives in Washington County somewhat farther away. He testified that signs reading 'Mississippi Law Stop' were maintained on each side of the railroad crossing. On cross-examination, however, he said that he had seen the sign so many times that he could not remember whether he saw it that particular night. However, his testimony is unequivocal and uncontradicted that he was thoroughly familiar with the highway and the crossing, his testimony in regard thereto being:

I knew where I was, and I knew where the railroad was. * * *

* * * No. I don't say that I would have purposely-that I would purposely break the law. I knew the railroad track was there. I knew the sign was there, but I didn't know the bus was there, or I would have stopped.

He explained the accident as follows:

The bus stopped and I didn't. I didn't notice the bus until I was too close on him to miss. When I saw the bus, I tried to miss him, but I was just a little too late.

The next witness for the movant was an employee of the railroad company who...