Lum v. Jackson Indus. Uniform Service, Inc., 43537

• Decision Date: 24 May 1965
• Docket Number: No. 43537,43537
• Citation: 253 Miss. 342,175 So.2d 501
• Parties: A. D. LUM, Sr., et al. v. JACKSON INDUSTRIAL UNIFORM SERVICE, INC.
• Court: Mississippi Supreme Court

Page 501

175 So.2d 501

253 Miss. 342

A. D. LUM, Sr., et al. v. JACKSON INDUSTRIAL UNIFORM SERVICE, INC.

No. 43537.

Supreme Court of Mississippi.

May 24, 1965.

Prewitt, Bullard & Braddock, Vicksburg, for appellants.

Vollor & Thames, Vicksburg, for appellee.

RODGERS, Justice:

This is an action under the wrongful death statute, growing out of an automobile collision between a van type delivery truck and a Volkswagen, in which A. D. Lum, Jr. lost his life. The accident occurred about 1:30 P.M. April 15, 1963, on U. S. Highway 61, south of Vicksburg, Mississippi, near the entrance to the Le Tourneau plant.

The decedent, A. D. Lum, Jr., was a young man fifteen years of age, but was licensed to drive a Volkswagen which he owned. The events leading up to his death began on Clay Street in the City of Vicksburg, Mississippi. He stopped his Volkswagen to offer to drive two young ladies home. After they got in the car, A. D. Lum, Jr. mentioned that he knew of a good place to eat at Port Gibson. Thus, they proceeded on Highway 61, going south, toward Port Gibson. They stopped in a 'Y' drive leading to Le Tourneau's plant in order to raise the top of the Volkswagen. They had to move once so as to let a truck go by and they were seen to move in behind another truck. The Volkswagen went out on the highway, going south, but it had only gone a few feet from the Le Tourneau entrance when a collision occurred with the 'step van' type of truck belonging to appellee. The truck was being driven by Lonnie Joe Hall.

Appellee is engaged in the business of cleaning and furnishing uniforms to persons engaged as mechanics, service station attendants and other like industrial workers. Mr. Hall has been traveling for some time a route through several towns, in order to pick up and deliver uniforms. The day of the accident, he had traveled his usual route, going north, and was on his way to Vicksburg. There is a conflict in the evidence as to the speed of the truck before it reached the hill leading down to the scene of the fatal accident. The distance from the crest of the hill south to the 'Y' drive, leading to Le Tourneau's plant, is approximately 1,950 feet. Various witnesses testified that it was a long hill, and some of the witnesses saw the truck traveling down the hill a considerable distance while the horn was blowing, and 'while the driver was standing on his brakes.' Mr. Hall testified the distance to the Le Tourneau turn-off was approximately 500 feet and he stated he was 350 feet from the Volkswagen when he first saw it 'pull into the highway.' Other witnesses testified that the truck driver began to blow his horn as soon as he came over the hill going north, south of the Le Tourneau driveway. There is a conflict in the evidence as to the place in the highway where the collision occurred. Appellant's testimony shows the collision occurred in the west lane of the highway, the Volkswagen's proper lane of travel. The driver of appellee's truck claims that after he had started down the hill, he saw the Volkswagen in the east lane, (the truck's proper lane of travel), and that he began to blow his horn. He increased his speed, assuming that the Volkswagen would go over to its proper lane of travel, but as he approached the Volkswagen, he decided it was not going back to its lane of travel. He thereupon applied his brakes, pulled the truck against the guardrail on his right side and bounced back into the center of the road where he struck the Volkswagen near the center of the front left wheel. He claims that at the time of the impact, the Volkswagen was on the center line of the highway, traveling at an angle across the highway from east to west toward its proper lane of travel.

The truck turned over and skidded down the highway on its side and was in the east lane of travel. The Volkswagen came to rest after the accident on its proper side of the highway, near the guardrail on the west side of the highway. The two young ladies in the Volkswagen were also injured and all of the occupants were hospitalized. One of them was unable to remember the accident, but the other young lady testified that the Volkswagen was in its proper lane of the highway at the time of the collision.

At the conclusion of the trial, the jury returned a verdict in favor of the appellee, defendant in the trial court.

Appellant complains that the court granted certain erroneous instructions, the first of which is as follows:

'The Court instructs the jury that it is negligence as a matter of law for anyone to drive an automobile on the left side or the wrong side of a highway and if you believe from the evidence in this case that A. D. Lum, Jr. drove his Volkswagen car on the left side or wrong side of the Highway 61 just before the collision herein complained of, then the said A. D. Lum, Jr. was guilty of negligence, and if you further believe from the evidence in this case that negligence was the sole proximate cause of the collision then it is your sworn duty to find you verdict for the Defendant.'

It is argued that this instruction was confusing, and that the words 'just before the collision' mentioned in the instruction was not a proper guide as to when the presence of the Volkswagen on the left side or wrong side of the highway was negligence. We are of the opinion, however, that Mississippi Code Annotated section 8181 (1956) requires the operator of a motor vehicle to drive upon the right half of the roadway, except under certain conditions set out in the law, and if a motor vehicle is driven upon the wrong side of the highway at a time, not within the exceptions set out in the foregoing statute, such an operation of a motor vehicle is negligent, and if the driver's negligence was the sole cause of the accident, damages cannot be recovered for his injury caused by his own act.

The instruction was not erroneous and was properly granted under the facts in this case. Winfield v. Magee, 232 Miss. 57, 98 So.2d 130 (1957); West v. Aetna Ins. Co. of Hartford, Conn., 208 Miss. 776, 45 So.2d 585 (1950); Robinson v. Colotta, 199 Miss. 800, 26 So.2d 66 (1946); White v. Weitz, 169 Miss. 102, 152 So. 484 (1934).

The appellee requested, and was granted, the following instruction:

'The Court charges the jury for the defendant that under the law when a motorist is driving in a reasonable and prudent manner and then is suddenly confronted with a sudden emergency not of his own making and is by reason thereof placed in a position of peril to himself without sufficient time in which to determine with certainty the best thing to do, he is not held to the same accuracy of judgment as is regularly required of him under ordinary circumstances but need only be held to that which would be required of a reasonable man under the unusual circumstances, and in this instance if you believe from the evidence that the driver of the Defendant's truck, who was injured in the collision, was immediately prior to the collision confronted with a sudden emergency which he did not create consisting of Plaintiff's vehicle traveling toward defendant's truck in defendant's proper lane of traffic and was by reason thereof placed in a position of peril to himself, then in weighing the evidence and in determining whether or not the defendant driver was guilty of negligence at the time of the collision you may take into consideration all of the facts and circumstances as shown by the evidence and the situation with which the driver was confronted, and you must believe from a preponderance of all the evidence in this case that the driver of defendant's truck was guilty of negligence which contributed to the collision before the plaintiff is entitled to a verdict at your hands, and if the plaintiff has failed to prove to you by a preponderance of the evidence that the driver of the defendant's truck was guilty of negligence which contributed to the collision, then your verdict must be for the Defendant.'

This instruction is similar to the instruction granted to the defendant in the case of Ladner v. Merchants Bank & Trust Co., Miss., 171 So.2d 503, rendered February 8, 1965. In that case, we held that the instruction should not have been granted for the 'reason that the evidence shows without dispute that the sudden emergency was an emergency of the defendants' own making.'

In the instant case, however, we are of the opinion that the facts shown by the appellee under its theory of the proximate cause of the accident is a typical, if not a classical, example of the situation where an instruction on the sudden emergency doctrine should have been granted. Appellee's testimony and theory of the case is that its driver came over the crest of a hill driving, as he claimed, in a legal manner, and suddenly a Volkswagen came out on the highway and approached him in his lane of travel. The truck driver became aware of the emergency, and thereafter, in order to avoid peril and injury to himself, he proceeded to act as a reasonable and prudent man similarly situated. He blew his horn, put on the brakes, and turned his truck as far to the right as he could--in fact, so far to the right--he struck the guardrail and bounced back, striking the Volkswagen near the center line of the highway. Appellee was entitled to have the jury pass upon the question as to whether or not the driver of appellee's truck acted as a reasonable and prudent man under similar circumstances, after discovering the sudden emergency.

In the case of Peel v. Gulf Transport Co., 174 So.2d 377, rendered April 19, 1965, this Court went into considerable detail when a sudden emergency or sudden peril instruction should be granted. In the light of Peel and the cases previously decided by this Court with reference to the sudden peril doctrine, we are convinced that the instruction in the instant case was properly granted, under the theory of appellee's defense and the evidence introduced to sustain it. We find no reversible...