Ladner v. Merchants Bank & Trust Co.

• Decision Date: 08 February 1965
• Docket Number: No. 43273,43273
• Parties: Carl S. LADNER v. MERCHANTS BANK & TRUST COMPANY et al.
• Court: Mississippi Supreme Court

Page 503

171 So.2d 503

251 Miss. 804

Carl S. LADNER v. MERCHANTS BANK & TRUST COMPANY et al.

No. 43273.

Supreme Court of Mississippi.

Feb. 8, 1965.

P. D. Greaves, Gulfport, Bryan & Gordon, Pascagoula, for appellant.

Gex, Gex & Phillips, Bay St. Louis, for appellees.

KYLE, Presiding Justice.

This case is before us on appeal by Carl S. Ladner, plaintiff, from a judgment of the Circuit Court of Hancock County rendered in favor of the plaintiff against the Merchants Bank & Trust Company and Carlton G. Burrow, defendants, in an action for damages for personal injuries sustained by him in an automobile accident, which occurred on August 7, 1961.

The record shows that the appellant was an employee of Credit Laundry and at the time of his injury was engaged in picking up laundry for his employer; that the appellant was driving a Metro-Mite laundry truck in a northerly direction on South Beach Boulevard in the Town of Waveland, when a 1956 Lincoln automobile which was owned by the appellee Merchants Bank & Trust Company, and was being driven in a southerly direction on South Beach Boulevard by the appellee, Carlton G. Burrow, an employee of the Merchants Bank & Trust Company, collided with appellant's laundry truck. The accident occurred at approximately 10:30 A.M., a short distance west of the point of intersection of Nicholson Avenue with South Beach Boulevard in the Town of Waveland. The boulevard on which the accident occurred was a paved two-lane highway running generally northeasterly and southwesterly alongside a concrete seawall which separated the roadway from the Gulf shore line. A light rain was falling at the time of the accident, but a short time before there had been a heavy rain. The street was partially covered with water. The defendant Carlton Burrow was enroute from the bank in Bay St. Louis to a branch office in Waveland to pick up bank items and take them back to the bank's main office in Bay St. Louis.

The declaration in this case was filed on January 21, 1963. After a brief statement of the facts the declaration charged that the defendant Burrow was operating his vehicle at an excessive and dangerous rate of speed; that he negligently failed to keep his automobile under constant and easy control; that he negligently failed to decrease the speed of his vehicle under the conditions of travel then prevailing; and that he negligently, carelessly and unlawfully drove his automobile at such excessive rate of speed that he lost control of the vehicle and drove it across the center line of the highway and into and against the plaintiff's laundry truck which was proceeding northwardly in its proper lane of travel, with such great force and impact that the laundry truck was demolished and the plaintiff was seriously and permanently injured. The plaintiff further alleged that, as a result of the violent impact, the plaintiff suffered a comminuted fracture of the left leg and the bones in his left knee were completely severed, and the muscle and ligaments of his left leg were torn, strained, damaged and ruptured; that he suffered five fractured ribs and contusions and abrasions over his entire body; and that as a result of the above mentioned injuries the plaintiff was totally and permanently disabled.

The case was tried at the September 1963 term of the court, and the jury returned a verdict for the plaintiff for the sum of $18,000, and a judgment was entered in favor of the plaintiff for that amount. The plaintiff filed a motion for a new trial on the ground that the court erred in granting an instruction to the defendants which permitted the defendants to invoke the rule of sudden emergency as a defense to the plaintiff's charge of negligence in the operation of the defendants' automobile, and on the ground that the verdict of the jury was grossly inadequate. The motion for a new trial was overruled, and from the judgment entered in the case and the order overruling the plaintiff's motion for a new trial, the plaintiff has prosecuted this appeal.

The appellant has assigned three points as ground for reversal of the judgment of the lower court, as follows: (1) That the court erred in granting the appellee's instruction on sudden emergency; (2) that the verdict of the jury was so inadequate as to evince bias, passion and prejudice on the part of the jury; and (3) that the court erred in overruling the appellant's motion for a new trial. In view of the nature of the points argued as ground for reversal of the judgment, it is necessary that we give a brief summary of the testimony of the witnesses who had personal knowledge of the accident and the medical testimony relating to the plaintiff's injuries.

The defendant Carlton G. Burrow, being called to testify as an adverse witness by the plaintiff, testified that he was 19 years old and that, in August 1961, he was working for the Merchants Bank & Trust Company of Bay St. Louis, and on the day of the accident he was driving a 1956 Lincoln Fordor automobile from Bay St. Louis to the bank's branch office in the Town of Waveland; that he made trips to the branch office of the bank at Waveland every morning around ten o'clock to pick up bank items that had been brought in and carry them to the main office at Bay St. Louis. He had made the trip from Bay St. Louis to Waveland many times and was thoroughly familiar with the road, which was a two-lane paved highway known as the West Beach Boulevard, running alongside the Gulf Sound. He stated that he was on his way to the branch office at Waveland on August 7, 1961, when his Lincoln automobile ran into and collided with the plaintiff's laundry truck. He could not say how fast he was driving when he lost control of his car. He was watching the road and not his speedometer. He stated, 'I was traveling at a rate of speed I felt safe at, reasonable to me.' He saw the plaintiff's truck approaching when he was 100 or 150 yards from the truck. It was raining. The street was wet and his car was throwing water on both sides of the road, but the road was not flooded. However, in places the water was running across the road. When he saw the plaintiff's truck it was on its own proper side of the highway, and when he struck the truck it was still on its own proper side of highway, right up against the seawall. He was unable to say whether the truck had come to a complete stop or not.

Burrow stated that his car started skidding sideways at a point on the highway where a shell built driveway went up a nine or ten foot hill; that the water had washed shells down to the highway, and as he was rounding a curve he saw that, and he intended to go around the shells, which would have represented a five or six foot adjustment; that as he was about to go around the shells he saw the laundry truck pull out ahead; that he had it in mind to go on and pull back into his own lane of travel, and as he hit his brakes he hit the shells and they threw him off and he lost control of his car. He was then a city block or more from the laundry truck, but when he hit his brakes the car went out of control and turned sideways and collided with the laundry truck. He hit the corner of the truck with the front part of his car. It was a hard collision. His car sideswiped the truck and finally came to a stop when it struck the seawall about 15 feet behind the truck. He admitted that his car struck the seawall with such force that it knocked the seawall down.

Burrow was asked whether, after the wreck happened, he told Carl Ladner, 'It is all my fault.' His answer was, 'I don't know I was very excited and afraid.' He denied that he had told Burney Benigo, while talking to him at the Mardi Gras Lounge after the accident, that he was making 85 miles an hour. Burrow stated that he went to a house right across the road from the place where the accident occurred and called Mr. Fred Bougeois, the marshall, and reported the accident and asked him to call an ambulance. He then called his father on the telephone. Burrow admitted that he knew at the time of the hearing that the speed limit where the wreck occurred was 25 miles an hour.

The plaintiff, Carl S. Ladner, testified that he had picked up a package of laundry at Dr. E. C. Samuel's house on Waveland Beach and had driven about one hundred and thirty or forty feet northwardly when he first saw the on-coming Lincoln automobile. It was approximately 300 or 350 feet ahead of him at that time and was approaching him in its own traffic lane at a high rate of speed and was throwing up a spray of water on both sides. The plaintiff pulled his truck to the right against the concrete seawall and stopped, but left his motor running. When the automobile was about 250 or 260 feet from the truck the plaintiff saw that the driver of the automobile had lost control of his vehicle which started spinning and sliding on the paved highway. The automobile continued to spin and slide crossways of the road, and finally hit the left front of the laundry truck headon and came to a stop when it crashed into an 8-foot span of the concrete seawall about 125 feet behind the laundry truck.

The plaintiff testified that the impact of the automobile against the left front of the truck knocked him against the back door of his truck. When he tried to get up he found that his leg was just dragging behind him. His knee was badly damaged. He was carried to the hospital in Bay St. Louis immediately and was examined by Dr. Thomas Quigley. The doctor told him that he needed surgery, and Dr. Armand J. Scully was called in and operated on the knee the next day. The plaintiff suffered severe pain in his leg and in his chest and his fractured ribs. He remained in the hospital eight days. A cast was placed around his leg and a wheel chair was provided for him. He stayed in the wheel chair about a month and after that he moved around on crutches for a period of approximately four months. Dr. Scully operated on his knee a second time on...