Jones v. Dixie Greyhound Lines

• Decision Date: 19 February 1951
• Docket Number: No. 37835,37835
• Citation: 50 So.2d 902,211 Miss. 34
• Parties: JONES et al. v. DIXIE GREYHOUND LINES, Inc.
• Court: Mississippi Supreme Court

Page 902

50 So.2d 902

211 Miss. 34

JONES et al. v. DIXIE GREYHOUND LINES, Inc.

No. 37835.

Supreme Court of Mississippi, Division A.

Feb. 19, 1951.

Dyer & Campbell, Greenville, for appellants.

Wynn, Hafter, Lake & Tindall, Greenville, for appellee.

ETHRIDGE, Commissioner.

Appellants, Mrs. Burnette Jones, a widow, and her four surviving minor children, sued appellee, Dixie Greyhound Lines, Inc., for damages for the alleged wrongful death of Evelyn Jones, a child of five years and eight months of age at the time of this tragic incident. Evelyn was the daughter of Mrs. Jones, and the sister of the minor appellants. From a jury verdict for appellee, appellant assigns and argues as error the giving of two instructions by the trial court. We hold the two instructions were erroneous and remand the case for a new trial. Some discussion of the evidence is necessary in order to consider these instructions.

Appellant, Burnette Jones, and her five minor children lived in a house located about midway between the towns of Greenville and Leland in Washington County, Mississippi. The house was situated about fifty feet south of the right of way of U.S. Highway No. 82, which runs east and west for ten miles between the two towns. The highway at that point is straight and level. Its surface is concrete, twenty feet in width, flanked by gravel shoulders on each side, approximately eleven feet wide. On Sunday, July 3, 1949, the pavement was dry and the visibility good. Plaintiffs' witnesses testified that the sun was out. Some witnesses for defendant testified it was cloudy, but there is no serious dispute that the visibility was good.

About nine o'clock that morning, Mrs. Jones, accompanied by her deceased daughter, Evelyn, then about five years and eight months of age, her minor son, appellant Ernest Clyde Jones, then about three years and five months of age, and her infant nephew, Ernest Shelby, then between two and three years of age, went with her brother-in-law, Zellie Shaw, to look over a cotton crop, which was located down the road east from her home. Shaw drove the car, a 1946 model Ford dump truck, and after inspecting the cotton they returned in the truck to a point on the highway opposite a driveway leading to the house occupied by appellants. The truck was facing west, and was stopped off the pavement on the north shoulder of the road. All five of the occupants of the truck were riding in the cab of it. Evelyn was standing beside her mother, next to the right-hand door. When the truck stopped Evelyn got out, and according to the testimony of Mrs. Jones and Shaw started to go around to the front of the truck. Mrs. Jones saw the bus coming up the highway from Greenville toward Leland, west to east, and both she and Shaw called Evelyn to come back from the front near the right front fender of the truck, and come around to the back with her and the children. After Evelyn had started around to the back of the truck, Mrs. Jones began getting out of it with her infant nephew in one arm and her minor son by the other hand. The truck then started to pull forward a few feet and immediately after that Evelyn started running south across the highway toward her home. Shaw stopped the truck. Mrs. Jones became frightened and screamed at Evelyn, who was running. According to appellee's testimony Mrs. Jones had run out on the highway about halfway across the north side of the pavement trying to catch Evelyn, but appellants' witnesses said she was on the shoulder of the road. The bus struck and killed Evelyn.

The bus driver, John Moody, testified that on that morning he was driving a bus containing thirty-four passengers. It was approximately thirty-four feet in length with a diesel engine and air-brakes. He said the road was straight and level, and that he had passed a slow vehicle about a quarter of a mile back from where the accident occurred. No other vehicles or obstructions were then between him and the truck. He saw the truck parked on the north shoulder of the highway, he testified, but he did not see anybody around it. The truck was parked off the concrete. He first saw it about a quarter of a mile away, at which time he was going between thirty-five and forty miles an hour. After he passed the slow vehicle, he accelerated his speed up to about fifty miles an hour, at which time the child ran out in front of the bus. The bus was about one or two bus lengths, one witness said fifty yards, from the front end of the truck when Moody first saw the child when she ran in front of him from the rear of the truck. He applied the brakes and swerved to the right. He testified he could not turn left because Mrs. Jones and the other children were in the road almost to the center line, and that when the bus hit the child the right front wheel had left the concrete. Plaintiffs' witnesses testified that the bus was six or seven feet off of the shoulder when Evelyn was hit.

Moody had been driving this route for five years, about twelve times a week, but had never noticed the children around this house. He admitted that he began to pick up speed after passing the slow vehicle a quarter of a mile down the road, and that he saw the truck a quarter of a mile away, but did not notice anyone around or in it. He never slowed his speed until the child ran from in the back of the truck. From the point of impact with Evelyn, the bus travelled for one hundred and fifty feet until halted in the ditch. Moody said that after he had hit the child, he eased up on his brakes in order to avoid turning the bus over, and injuring his passengers. Evelyn's body was knocked off of the gravel shoulder into the ditch on the side of the road. Appellants' witnesses testified that the bus driver did not blow his horn at all. Some of appellee's witnesses stated that he blew the horn after the child ran out from behind the dump truck.

Appellants' position is that Mrs. Jones and the three children debarked from the truck in plain view of the oncoming bus and its driver for a distance of a quarter of a mile, that there was nothing to have prevented the driver from seeing these people as he was approaching the truck, that if the bus driver did not see them he was negligent because he had an unobstructed view, and if he did see them he was negligent because he should have continued his approach toward the truck more slowly instead of speeding up and thereby creating the sudden emergency through his own negligence. Appellee's position is that the bus driver sighted the truck about a quarter of a mile away, but none of the occupants of it were visible, and that the first indication to the bus driver of human presence around the truck was the sudden appearance of Evelyn when she ran from behind the truck and into the path of the bus; that it was then too late for the driver to avoid hitting her, particularly in view of the fact that the presence of Mrs. Jones and the other two children on the north part of the pavement prevented him from driving to the left of Evelyn; and that Moody was driving with care in approaching the truck and did everything he could reasonably to avoid the accident.

The jury returned a verdict for appellee, and appellants assign as error the giving of two instructions. Instruction Number 5 for appellee was as follows: 'The Court instructs the Jury for the defendant, Dixie Greyhound Lines, Inc., that if you believe from a preponderance of the evidence that the appearance of the deceased, Evelyn Jones, if she ran suddenly from behind the parked dump truck onto the highway and into the path of defendant's bus constituted a sudden emergency and placed defendant's bus in a position of imminent peril to said Evelyn Jones without sufficient time for defendant's driver, Moody, to determine with certainty the best course to pursue, defendant is not held to the same accuracy of judgment as would be required of defendant under ordinary circumstances and is not liable for injuries caused by defendant's bus to the said Evelyn Jones when said Evelyn Jones was struck by defendant's bus, even though a course of action other than that which defendant's driver Moody pursued might be more judicious, provided you further believe from a preponderance of the evidence that the defendant's driver Moody, exercised ordinary care in the stress of circumstances to avoid hitting the said Evelyn Jones.'

The instruction undertakes to set forth the so-called 'sudden emergency' doctrine. Appellants urge that it is erroneous because it omits the requirement that the emergency must not have been brought about in whole or in part by the appellee, who is invoking the emergency rule. Appellee admits that the instruction covers only the question of negligence after the emergency arose, and says that the first part of this doctrine, that the driver must have used due care to avoid meeting or creating an emergency, is set out by two...