McDonald v. Collins

• Decision Date: 13 December 1926
• Docket Number: 26012
• Citation: 110 So. 663,144 Miss. 820
• Court: Mississippi Supreme Court
• Parties: MCDONALD et al. v. COLLINS. [*]

110 So. 663

144 Miss. 820

MCDONALD et al. v. COLLINS. ^[*]

No. 26012

Supreme Court of Mississippi

December 13, 1926

Division A

AUTOMOBILES. Instruction making automobile driver liable for killing dog because he had passed horsemen at unlawful speed held erroneous (Laws 1916, chapter 116, section 3).

Instruction in action for killing of dog by automobile after it had, in violation of Laws 1916, chapter 116, section 3, passed, at greater speed than, eight miles per hour, horses ridden on highway, that if defendant so passed them, he was liable for damages caused thereby, and jury should find for plaintiff irrespective of his subsequent efforts to slow down, held erroneous as depriving him of his defense that dog ran in front of car after it slowed down, find making him liable for a thing of which his illegal act was not the proximate cause.

HON. R S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Action by E. T. Collins against James McDonald and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Reversed and remanded.

E. L Wingo, and Currie, Smith, Stevens & Currie, for appellants.

The instruction complained of tells the jury that it makes no difference whether the defendant was negligent or not if he undertook to run his automobile past horses being used upon the public highway for riding purposes faster than eight miles an hour, that he is liable for all damages caused thereby, regardless of his efforts after passing the horses to slow down his speed. We are unable to comprehend the applicability of this instruction.

The instruction is necessarily prejudicial because it amounts to telling any average person that under the law McDonald is absolutely liable for killing the dog, regardless of how it happened, provided only that he passed the owner of the dog on horseback at sometime at a greater rate of speed than eight miles an hour. Under this instruction the defendant would have been liable for killing the dog if the automobile had been absolutely stopped and the dog had run into the car.

Suppose the defendant was running nine miles per hour when he passed the horses and promptly slowed down to five miles per hour before reaching the dog, or suppose the dog was one hundred and sixty feet behind the horses, as the defendant's witnesses testified, and the defendant slowed down, still under this instruction the defendant would be absolutely liable.

There is no proof that McDonald was traveling faster than eight miles an hour at the time the dog was struck. Negligence is a question of fact and depends upon all the circumstances and certainly running a truck past two men riding horseback, admittedly some distance away from the dog, could not be the proximate cause of the injury and could not be the legal criterion of negligence at the time of striking the dog. See Jones v. I. C. R. R. Co., 23 So. 358; A. & V. R. R. Co. v. Carter, 27 So. 993; Clisby v. M. & O. R. R. Co., 29 So. 913.

F. M. Morris, for appellee.

Section 3, chapter 116, Laws of 1916, provides that "no person operating or causing to be run a motor vehicle which passes a person driving a horse or other dumb animals or persons walking in the road shall go at a greater rate of speed than eight miles per hour." Section 12 of this act makes all persons violating any provisions of the acts liable for their acts contrary to the provisions of the law.

According to the appellant's own testimony if he had been obeying the law in driving the truck at a rate of speed of eight miles per hour, he could have stopped his motor car in time to prevent any damage to the appellee, but by reason of the speed with which his automobile was going the appellee was damaged by the killing and loss of said dog as is shown by appellant's own testimony.

Under the proof the jury was properly instructed as to the law. The judgment of the lower court should be affirmed.

OPINION

MCGOWEN, J.

E. T. Collins, appellee, filed an elaborate declaration in the justice of the peace court against appellants, James McDonald and Mrs. Lottie McDonald, and the McDonald Grocery Company, claiming damages caused by James McDonald's running over and killing an English bulldog belonging to plaintiff. The justice of the peace rendered judgment in favor of the plaintiff for one hundred dollars. The case was then appealed to the circuit court, where judgment was rendered in favor of plaintiff for the same amount, from which judgment McDonald and others are prosecuting this appeal.

The tragedy occurred on the Rawls Springs and Hattiesburg highway. The plaintiff, Collins, was traveling from Hattiesburg on horseback, while McDonald was coming toward Hattiesburg driving in a Ford car. The plaintiff's proof further shows that the dog belonging to him was ten or fifteen feet behind him (Collins) and his son, both of whom were riding together, each on a horse abreast. Plaintiff's testimony tended to show that McDonald was driving his car when he passed these two horses and their riders at about twenty or twenty-five miles an hour, and that appellant cut in on the left-hand side of the road immediately to the rear of the horsemen and deliberately ran...