May v. Pace, 44320
| Decision Date | 20 March 1967 |
| Docket Number | No. 44320,44320 |
| Citation | 197 So.2d 220 |
| Parties | Mrs. Evelyn C. MAY v. Aaron M. PACE, Jr. |
| Court | Mississippi Supreme Court |
Barnett, Montgomery, McClintock & Cunningham, Ross R. Barnett, Jr., Jackson, for appellant.
Satterfield, Shell, Williams & Buford, Cary E. Bufkin, Jackson, for appellee.
Mrs. Evelyn C. May, Appellant, brought suit against Aaron M. Pace, Jr., C. E. O'Neal and Shirley Ann Bufkin in the Circuit Court of the First Judicial District of Hinds County, Mississippi, for damages for personal injuries and property damage growing out of an automobile collision. Before trial a voluntary non-suit was granted as to C. E. O'Neal and Shirley Ann Bufkin and the case proceeded to trial against Aaron M. Pace, Jr. only. There was a verdict and judgment for Defendant Pace, and Plaintiff May perfected her appeal to this Court.
About 7:40 A.M. on February 23, 1965, Appellant May and Appellee Pace were driving to work in their respective automobiles on Interstate Highway 55 just south of Jackson, Mississippi. A six-car collision occurred when the automobile of C. E. O'Neal travelling easterly suddenly slowed down and stopped on the downward slope of the highway after passing over the bridge of the highway spanning the Gallatin Street underpass. Mrs. May in her Pontiac Bonneville was in fourth position back of O'Neal and ran into the rear of the Bufkin car which was in third position back of O'Neal. Pace in his Chevrolet Corvair, in the fifth car back of O'Neal, ran into the rear of Mrs. May's car.
Mrs. May testified that as she entered Interstate Highway 55 bridge over Gallatin Street she saw Miss Bufkin's car hit the car in front of it, that she applied her brakes and came to a stop without hitting the Bufkin car. She stated that Pace ran into the back of her car forcing it into the Bufkin car.
Appellee Pace testified that it was the usual heavy morning traffic, that the weather was clear and dry, that he was travelling about 40 to 45 miles per hour, which was about the speed of the other cars in the inside lane. He was about 75 feet back of Mrs. May's car when suddenly her red brake lights went on as she was crossing the highway bridge over Gallatin Street. He immediately applied his brakes, but was not able to stop his car before it ran under the rear end of the May car. The engine of a Chevrolet Corvair is in the rear and the trunk compartment in the front. The impact peeled back the hood of the trunk compartment but did not damage his front bumper. The damages to the rear of the May car were about.$373.00 and the damages to the front of the May car about $806.00. Mrs. May suffered some personal injuries and her x-ray and doctors' bills amounted to about $330.00.
The principal error assigned by the appellant was the granting of a sudden emergency instruction to the appellee, the appellant contending that appellee was not entitled to such an instruction because his negligence contributed to the emergency and that even if he were entitled to such an instruction, the instruction granted was fatally defective in that it did not include the three essential elements listed in the case of Gulf, Mobile & Ohio R. Co. v. Withers, 247 Miss. 123, 154 So.2d 157 (1963).
We deem it unnecessary to discuss the other three assignments of error because we have reached the conclusion that an instruction on sudden emergency should not have been granted, and that the judgment, therefore, must be reversed and the cause remanded for a new trial.
The sudden emergency rule is not available to the actor if the emergency was created in whole or in part by his prior negligence. A condition precedent to the application of the rule is that one who seeks its benefit must have used due care to avoid meeting such an emergency. Jones v. Dixie Greyhound Lines, Inc., 211 Miss. 34, 50 So.2d 902 (1951).
The following are examples of acts or omissions which have precluded resort to the rule: driving at an excessive rate of speed, Ladner v. Merchants Bank & Trust Co., 251 Miss. 804, 171 So.2d 503 (1965); driving with defective brakes, Fink v. East Mississippi Electric Power Ass'n, 234 Miss. 221, 105 So.2d 548 (1958), Allen v. Schultz, 107 Wash. 393, 181 P. 916, 6 A.L.R. 676 (1919); following another vehicle too closely, Washington v. Terrell et al., 185 So.2d 925 (Miss.1966), Gregory v. Thompson, 248 Miss. 431, 160 So.2d 195 (1964), Continental Southern Lines v. Klaas, Inc., 217 Miss. 795, 63 So.2d 211, 65 So.2d 575, 833, 67 So.2d 256 (1953); switching lanes on a four lane highway without first ascertaining if movement into the other lane could be made with safety, Cipriani v. Miller, 248 Miss. 672, 160 So.2d 87 (1964); approaching a small boy on a bicycle without diminishing speed or giving warning, Moak v. Black, 230 Miss. 337, 92 So.2d 845 (1957); and...
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Bozeman v. Tucker, 44635
...at least in part as a result of the actions of the appellee, and for this reason he was not entitled to this instruction. May v. Pace, 197 So.2d 220 (Miss.1967). The proof conclusively shows that he knew the cows were in the road when he was over a quarter of a mile away. The record does no......