Kirkland v. Harrison, 39243
| Decision Date | 11 October 1954 |
| Docket Number | No. 39243,39243 |
| Citation | 74 So.2d 820,221 Miss. 714 |
| Parties | Theo N. KIRKLAND v. Andrew HARRISON et al. |
| Court | Mississippi Supreme Court |
M. V. B. Miller, Gerald Adams, Meridian, for appellant.
Nate S. Williamson, Meridian, for appellees.
The appellees, Andrew Harrison and his wife and two minor children, plaintiffs in the court below, recovered a judgment in the Circuit Court of Lauderdale County against the appellant, Theo N. Kirkland, in an action for damages for the wrongful death of Andrew Harrison, Jr., minor child of Andrew Harrison and his wife, Mary Earle Harrison, who was struck by an automobile driven by the appellant on U. S. Highway No. 45 on April 24, 1951. From that judgment the appellant prosecutes this appeal.
The record shows that the deceased, Andrew Harrison, Jr., was 8 1/2 years old at the time of the accident. He was living with his parents on 18th Street, in the City of Meridian, a short distance west of the point where 18th Street intersected U. S. Highway No. 49. The accident occurred late in the afternoon or in the early evening. The testimony of the plaintiffs' witnesses showed that a few minutes before the accident occurred the child had climbed upon the running board of a truck which was being used for hauling scrap iron and other junk. The truck entered the highway a short distance above the 18th Street intersection; and as the truck was proceeding southwardly along the highway the child either jumped or fell from the running board of the truck and while lying on the pavement was run over by a black Chevrolet automobile owned and operated by the appellant. An ambulance was immediately summoned and the injured child was carried to the hospital but died soon after reaching the hospital.
The plaintiffs alleged in their declaration that the decedent's injuries and death were caused by the defendant's negligence in failing to keep a proper lookout ahead of his moving car and in failing to see or anticipate the presence of the child on the highway and in failing to keep his automobile under proper control. The plaintiffs also alleged that the defendant was operating his automobile at an unlawful rate of speed, and that the defendant negligently failed to turn his automobile to the right or to the left so as to avoid coming in contact with the child after the child was seen on the highway.
Andrew Harrison, the decedent's father, testified that he went to the scene of the accident about thirty minutes after the child was injured. He saw a puddle of blood on the pavement at the 18th Street intersection about two feet from the west edge of the pavement. There were skid marks on the pavement running northwardly for a distance of about 30 feet. There were no skid marks going southwardly toward the city. He saw the mangled body of the child at the Matty Hersee Hospital some time after the accident. The right eye was hanging down on the left cheek and the left eye was pushed upward. There was a large hole in the back of the head, another large hole between the eyes, and a small hole in the top of the head. The left arm and shoulder were broken. The witness examined the appellant's automobile the next day and found flesh and blood on the bottom part of the front bumper. The witness stated that a colored family by the name of Ruffin lived in a house on the right-hand side of the highway going toward Meridian 85 yards south of the 18th Street intersection.
Roosevelt Allen, 14 years of age, testified that he was riding on the back end of the truck at the time of the accident. There were several other boys on the truck. Andrew Harrison, Jr., was riding on the side of the truck, and as the truck passed the 18th Street intersection Andrew jumped off the truck and fell on the pavement. The boys on the truck called to the driver to stop, and the truck came to a stop 'up there by the Ruffin house.' The black Chevrolet car passed the truck after the truck had been brought to a stop. When the car got to Andrew the driver put on his brakes, but it didn't help any, and the car ran over the child. Roosevelt stated that the truck was going about 15 miles an hour and that the car that passed the truck was going about 45 or 50 miles an hour. He said that when the child 'was fixing to raise up, the car hit him.' It was getting dark at the time of the accident, but neither the truck nor the Chevrolet car had lights on.
Melvin Jones, 16 years of age, testified that he was sitting on the back of the truck when the truck passed the 18th Street intersection, and that Andrew Harrison, Jr., was riding on the side of the truck; that Andrew jumped off the truck at the intersection where the dirt road leaves the pavement and goes to the Harrison home; and that Andrew fell to the pavement. The truck was running about 10 or 15 miles per hour. When the truck came to a stop, 'it had just passed the Ruffin house.' The black Chevrolet passed the truck at that time. The car ran over the boy 'just after he was fixing to raise up.' The car was going fast when it passed the truck. When the driver got upon the child, 'he hit his brakes', ran about a half block and came to a stop.
Willie Mae Ruffin, 12 years of age, testified that she was playing in front of the Ruffin house when the accident occurred. She saw the truck the boys were riding in, and she saw the black Chevrolet car pass the truck in front of the Ruffin house. The Chevrolet car was going fast. The driver gave no signal and did not slow down his car before he hit the child.
The appellant, testifying in his own behalf, stated that he was a minister of the Church of Christ and that he was driving northwardly on his way to Macon with Mrs. E. K. Hedley and Mrs. Luther Morgan at the time the accident occurred to teach a Bible class. He was driving at a rate of speed of approximately 25 miles per hour. It was about 10 minutes before 7 o'clock and was getting dark when he passed the truck. As he got within 10 or 15 feet of the truck the boy fell off the truck. The appellant applied his brakes immediately and stopped his car as quickly as possible, but could not avoid running over the boy who was lying to the right of the center line of the highway. The appellant stated that his car straddled the child as it passed over him, and that the wheels of the car did not touch the child.
The two ladies who were in the car with the appellant testified that they were both riding on the front seat of the car. Mrs. Hedley stated that she 'saw something fall' just ahead of them, about 10 or 15 feet. Mrs. Morgan stated that she 'saw an object that fell or was thrown' from the truck. It turned out to be a 'a boy, a little boy.' He hit the pavement about 12 or 15 feet in front of the appellant's car. The appellant applied his brakes. 'It was all done right now.' Each of them testified that the car...
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