Kirkland v. Harrison, 39243

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: KYLE; McGEHEE
• Citation: 74 So.2d 820,221 Miss. 714
• Parties: Theo N. KIRKLAND v. Andrew HARRISON et al.
• Docket Number: No. 39243,39243
• Decision Date: 11 October 1954

Page 820

74 So.2d 820 221 Miss. 714 Theo N. KIRKLAND
v.
Andrew HARRISON et al. No. 39243. Supreme Court of Mississippi. Oct. 11, 1954.

[221 MISS 716] M. V. B. Miller, Gerald Adams, Meridian, for appellant.

Nate S. Williamson, Meridian, for appellees.

Page 821

KYLE, Justice.

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 [221 MISS 717] 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 [221 MISS 718] 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

Page 822

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...