McMinn v. Lilly

• Decision Date: 20 October 1952
• Docket Number: No. 38479,38479
• Citation: 60 So.2d 603,215 Miss. 193
• Parties: McMINN et al. v. LILLY.
• Court: Mississippi Supreme Court

Page 603

60 So.2d 603

215 Miss. 193

McMINN et al. v. LILLY.

No. 38479.

Supreme Court of Mississippi.

Oct. 20, 1952.

Snow & Covington, Meridian, for appellants.

M. V. B. Miller, Gerald Adams, Meridian, for appellee.

McGEHEE, Chief Justice.

The judgment involved on this appeal is for damages on account of personal injuries sustained by the plaintiff Paul Lilly when an accident occurred between the truck of the Dr. Pepper Bottling Company and the plaintiff's bicycle on April 11, 1950. At the time of the accident and injuries the plaintiff was about nine years and two months of age and was riding his adult size bicycle on the right side and near the outer edge of the pavement and down a fairly steep grade and in a northerly direction towards the City of Meridian. He was preceded by his older brother, Max Lilly, on a bicycle some 10 or 12 feet distant. It is undisputed that neither of the boys gave any signal of an intention to depart from their straight course near the right edge of the pavement, but according to their testimony they were still pursuing such straight course at the time of the collision between the plaintiff's bicycle and the truck of the bottling company which overtook them from the rear.

It is undisputed that the defendant E. M. Richardson, driver of the Dr. Pepper Bottling Company truck, which he was operating as an employee of the defendant Clyde McMinn, owner of the bottling company, saw these boys on their bicycles as he came over the top of a hill from the south and at a time when he was at least 100 yards distant from them; that the collision occurred about 100 feet further down the hill to the north; that the bottling company truck met and passed a cattle truck at or near the top of the hill, and that it met and passed a red pickup truck about 50 feet up the hill from where the accident occurred; that as the bottling company truck came over the hill from behind the boys it was travelling at only about 30 miles per hour; that after passing the cattle truck near the top of the hill and seeing the red pickup truck approaching him from the direction that the boys were travelling the driver anticipated that unless he reduced his speed he would likely meet the red pickup truck about the time he would be ready to pass the boys on their bicycles; and that therefore he reduced his speed to about 20 miles per hour and with the result that he met the pickup truck about 50 feet up the hill from the scene of the accident as aforesaid.

Although the driver of the defendant's truck when at the top of the hill had seen the boys about 100 yards ahead of him and riding down a fairly steep grade, and although the accident occurred about 100 feet further down the hill than the original 100 yards distance that separated them, he was unable to testify that he ever at any time sounded his horn or gave any other audible warning. He said that he didn't remember whether he did or did not blow his horn. The two Lilly boys testified that he did not blow the horn, and they were corroborated by other witnesses, including a boy companion, Bobby Ellis, who was walking up the hill between the bottling company truck and the two bicycles. However, the truck driver gave as his reason for not sounding the horn, if he did fail to do so, that both of the boys turned their faces toward him and were looking at him shortly after he came in view, and that he therefore thought that they both saw him and his truck approaching. The older boy, Max Lilly, who was riding ahead, admits that he looked back and saw the truck approaching but testified that he didn't know whether the plaintiff saw the truck or not; that as they were about to meet the red pickup truck as it came up the hill he again turned and said to the plaintiff, who was following him 10 or 12 feet away, 'Look out for the trucks'; but the plaintiff, Paul Lilly, testified that he did not know that the bottling company truck was behind him at all and did not notice the red pickup truck that he was meeting; and that he did not know what had struck him until he was later told in the hospital.

The truck driver testified that while he was traveling at about 20 miles per hour and was passing the plaintiff about 6 1/2 to 7 feet to the left of the bicycle, and at a time when the bumper of his truck was about even with the front wheel of the bicycle, the plaintiff suddenly turned his bicycle to his left and ran into the truck, striking it on the fender just behind the right front wheel. The plaintiff testified positively that he did not make any turn but continued straight forward near the right edge of the pavement, and according to all of the testimony on behalf of the plaintiff the truck had a space of approximately 18 feet within which to pass the bicycle on its left and to thereby avoid the collision. Max Lilly testified that when he heard the crash and the screeching of the brakes of the truck he looked back and saw the bicycle fly out from under the back end of the truck toward the right edge of the pavement.

It was fully established by the proof that the truck came to a stop with its right rear wheel near the center line of the pavement and its left front wheel near the left edge of the pavement; and that the skid marks of the truck began about 5 feet from where the bicycle finally rested on the pavement, but only about 2 or 2 1/2 feet from the right edge of the pavement, and continued for a distance of 9 steps; that when the brakes were first applied the rear wheels of the truck locked and when it finally came to rest the plaintiff's feet were pinched against the pavement by the right rear dual wheels; that thereupon the driver backed the truck up and the plaintiff was removed from underneath the same and was immediately carried to the hospital in the arms of the truck driver in a car in which he was accompanied by Messrs. Enzor and Davidson, who happened to be a short distance away at the time of the accident. These two men testified that en route to the hospital and while the car was being driven at about 90 miles per hour, the truck driver stated that the accident occurred so quickly that he didn't know just how it happened, but they admitted that the truck driver did not undertake to go into details in this time of excitement and suspense. Enzor finally admitted that the truck driver did say that he did not know what caused the boy to run into his truck.

Later, at the scene of the accident, the truck driver pointed out to the sheriff, in the presence of Davidson and others, a red mark about 2 inches long on the right fender of the truck which he claimed was caused by red paint from the practically new bicycle when it came in contact with the green fender of the truck. However, the sheriff testified that it didn't look to him like fresh paint, and there was testimony that the bicycle did not disclose that any paint had been removed from it.

One of the errors assigned is the refusal of the trial court to permit the truck driver on behalf of himself and his co-defendant McMinn, to prove that on this occasion he pointed out and stated more in detail as to how the accident occurred in amplification of his alleged statement to Enzor and Davidson en route to the hospital. But we are of the opinion that on the trial as a whole the jury got the benefit of his contention that the bicycle turned to its left and ran into his truck, and that if there was error in the court's refusal to permit the truck driver to tell all that he said later to the officer in the presence of Davidson and others at the scene of the accident, it does not constitute reversible error under all of the facts and circumstances of the case.

It was for the consideration of the jury as to whether or not the plaintiff when riding his bicycle at 5 or 6 miles per hour along the side of the truck which was being driven at 20 miles per hour, could have turned and traveled 6 1/2 or 7 feet to its left so as to connect with the truck on the fender immediately behind the front wheel.

It is also assigned as error that the trial court denied the defendants a continuance of the case on account of the absence of Mrs. Ben Enzor, who was in the hospital with high blood pressure and who had been personally served with process as a defense witness. On the application for continuance one of the attorneys for the defendants and others testified that they visited the scene of the accident and then went to the nearby home of Mrs. Enzor on the west side of the highway and that she stated to them that the accident was not the fault of the truck driver and that she would tell the truth about it if it was her own child involved; that she heard the horn, or rather the 'whistle', on the Dr. Pepper Bottling Company truck when it was blown and that she knew that it was the whistle on that truck because under her version of the occurrence it was the only truck there at the time the collision occurred, and that the plaintiff had turned from his course and had run the bicycle into the truck. But as above shown the bicycle would have been on the opposite side of the truck from where she said she was in her front yard painting a swing at the time. Moreover, she later furnished an affidavit to the plaintiff's attorneys, which was introduced in evidence on the motion for continuance, wherein she stated in substance that she did hear a horn blow but that she did not know which truck it was on, and that she did not see the bicycle run into the side of the truck. The trial court overruled the ...