McGee v. Bolen, 50831
| Decision Date | 21 March 1979 |
| Docket Number | No. 50831,50831 |
| Citation | 369 So.2d 486 |
| Parties | John H. McGEE et al. v. Wilburn L. BOLEN. |
| Court | Mississippi Supreme Court |
Parsons & Matthews, Thomas M. Matthews, Jr., Wiggins, for appellants.
Bryant & Stennis, Grier J. Gregory, Gulfport, Williams S. Murphy, Lucedale, for appellee.
Before SMITH, P. J., and SUGG and COFER, JJ.
COFER, Justice, for the Court:
The cause, a suit for damages for the wrongful death of a child, in the Circuit Court of George County, terminated in a jury verdict for the defendant Wilburn L. Bolen, from which the parents of the deceased child, John H. McGee, et ux., suing on behalf of themselves and the child's minor brothers, have taken this appeal. They assign several errors, among them being the court's failure peremptorily to instruct the jury to find for the plaintiffs. Concluding that this assignment is well taken, we do not reach a discussion of the other errors assigned.
Plaintiff parents and all three of their children, residents of Stone County, had gone on the morning of December 5, 1976, to visit plaintiff Mr. McGee's sister, Mrs. Slade, and her family residing in George County south of Lucedale. After their lunch, the parents and their hostess, Mrs. Slade, left to go to the Pascagoula River to return Mrs. Slade's husband, who was fishing there. They left the McGee children, including Jeremy, whose wrongful death is the subject matter of this suit, and two of the Slades' children, with an older sister of the Slade children, Charlotte Elizabeth Ford, who was then thirteen years of age.
On that date, December 5, 1976, Jeremy McGee was about four and a half years old and his brothers Brian and Clay, were five years old and between seven and eight years old, respectively. They had a foster brother, Chuck Boone McGee, who was eleven years of age.
The Slades' younger children, Kevin, Randy, and Kelly appear from the record to be of ages comparable to the McGee children.
As Charlotte was doing some house cleaning, Chuck, being also in the residence, the children had been playing in the yard area of the house, but moved down to, or to the edge of, Highway No. 63, described as a very busy highway about fifty feet from the Slade residence.
The area of the highway in front of the Slade residence is in a valley between downward slopes, south from Lucedale and north from Pascagoula.
It may be said at the threshold that appellee's driving experience, the safe condition of his tires and brakes, that the day of the accident was sunny, and that the highway was dry, are matters which are established by the uncontradicted evidence. That the paved portion of highway 63 is twenty-two feet wide and the shoulder of the highway, though varying in width, is around ten feet wide are facts likewise well established.
Appellee, with his mother in the passenger side, came southward over the crest of the hill about a half a mile from where the children were located. At his first observation of the children, he was not exceeding the fifty-five mile per hour speed limit, but, by means of brakes or other deceleration, he reduced the speed of the car to twenty-five miles per hour about a quarter of a mile north of the children, and thenceforth maintained that speed until he struck the child, Jeremy, applying his brakes about fifteen or twenty feet before the impact, and laying down skid marks approximately six feet in length. The child's body was knocked by the impact approximately fourteen feet to the front and left of the point of impact and his shoes were found off his feet.
As appellee had come over the hill and they saw the children beside the road, his mother said to him, "Wilburn, there is little children on the side of the road; whatever you do, you be careful," and, every now and then afterward, she would say to him, "Wilburn, be careful, son, whatever you do."
Appellee said that, of the several children, three or four in number, on the right (driver's) side of the highway, two were standing on the shoulder about a foot from the pavement of the highway, (elsewhere he had them two feet from the highway), and there was another child down the embankment from the pavement. He described these children as being a little girl about eleven years old, one little boy about eight or nine years of age, and the child down the embankment, a boy, was about seven or eight years of age.
There were two children, according to appellee, on the east shoulder of the highway, about nine or ten years of age and "maybe six" years old, and they were about two feet from the edge of the pavement and were almost directly across the highway from the children discussed in the paragraph next above.
He saw the children on his left side of the highway when he was about a quarter-mile away from them and, from then on, the children on both sides never passed from his view.
As appellee's car approached, the small girl on the right side held out her hand in front of the child next to her as if to restrain him from entering the road. As appellee approached the site from the north, one Chambers was driving an automobile northward and the two cars (the latter traveling thirty to thirty-five miles per hour) met and passed each other, one to two car lengths north of where the impact took place.
We come directly to Jeremy. Appellee, as an adverse witness, testified that the child suddenly darted out in the road, first seen by appellee when he was eight or nine feet of the center line on the edge of the highway (shown above to be twenty-two feet wide), and that he was about one foot from the center line when he was hit, the impact being at the left headlight of the vehicle, which was burst by the blow. He testified he fully applied his brakes the instant he saw the child and he made no effort to steer to the right or to the left. There was nothing to obstruct appellee's vision, it was winter, and the road shoulders were bare. He testified that the shoulder dropped off in a deep bank, but he could see the child he earlier testified to seeing, down the embankment. He further testified:
Q. Mr. Bolen, I believe you previously stated that you assumed the children would let you pass? Is that correct?
A. Yes, sir. As I approached them, the little girl took and put her right arm in front of the little boy that was by her.
Q. And you assumed at that time that the children would let you pass?
A. Yes, sir.
Q. You, therefore, did not further decrease your speed?
A. No, sir.
Q. You did not apply the brakes when you saw her stick out her hand?
A. No, sir.
Q. You did not apply your brakes until you saw the child, for the first time, in the paved portion of the road? Answer yes or no.
A. Could you repeat the question?
Q. You did not apply your brakes until you saw the child standing in the paved portion of the road?
A. Fully, yes; that's when I applied them fully.
Q. But you did not decrease your speed until you applied your brakes fully?
A. Yes, sir.
Later he testified as a part of his defense case. Asked on direct examination to tell again how the occurrence happened, he said:
A. . . . As I crested the hill at Hudson's Store, I saw the children along the road playing. So I began to slow my car down. And as I got near the children . . . I was going 50 whenever I was coming down that hill, so I slowed my car down to about 25. Whenever I got within distance of the children, I saw the little girl that was standing by the road with the little boy. I saw her put her hand out in front of him. And I kept going at the same pace. And as I passed them, that's when this little child darted out.
Q. All right, did you put on your brakes?
A. When the child darted out?
Q. Yes, sir.
A. Yes, sir.
Q. Did you hit the child?
A. Yes, sir, I did.
Q. Do you know where the child came from?
A. No, sir, I do not.
Q. . . . How many children did you see on the right hand side of the highway?
A. I saw three.
Q. Did you see the boy you hit?
A. No, sir, I did not.
Q. When did you first see the boy you hit?
A. Whenever he darted out to go across the road.
A. Did I see the child I hit?
Q. Yes, sir.
A. No, sir, not until he darted out.
Q. When you say he darted out, which way was he going?
A. As you go south, he was going from my right to my left.
Q. All right, that would have been from the . . .
A. . . . west to east.
Q. In relation to the pavement edge of the road on your right, where was Jeremy when you first saw him? Was he on the pavement portion?
A. He was on the outer portion.
Q. Of the paved highway?
A. Yes, sir.
Q. What was he doing when you first saw him?
A. He was darting, as I said, from right to left.
Q. All right. Now as you approached the children, let's try to pinpoint my question. After you have left Hudson's Store, you are going down the road . . . right along side of Hudson's Store there. You are heading south. How fast are you going?
A. I was going 25.
Q. Was your foot on the gas pedal or was your foot on the brake pedal?
A. It was on the brake.
Q. Was it all the way on the brake pedal?
A. No, sir, it was not fully applied.
Q. Why was your foot on the brake pedal?
A. So if I had to make a sudden stop I could.
On cross examination, this exchange took place.
Q. You said you didn't see Jeremy, the child that was killed?
A. No, sir, I did not.
Q. Why didn't you see the child?
A. I don't know.
Q. Was there anything that obstructed your vision from seeing the child?
A. No, sir.
Q. The child Jeremy McGee . . . the child that was killed you said when you first saw him he was standing in the paved portion of the road?
A. Yes, sir.
Q. At this location?
A. Yes, sir.
Q. And he was running across the road over to the other side?
A. Yes, sir.
Q. Is there anything that could have obstructed your vision from either seeing the child up on the raised shoulder of the road or down in this swell that goes off to the side.
A. No, sir.
Q. You keep using the words, "the child darted out," and it leaves me with the impression that the child darted out from behind...
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