McWhorter v. Draughn

• Decision Date: 21 January 1924
• Docket Number: 23808
• Citation: 134 Miss. 247,98 So. 597
• Court: Mississippi Supreme Court
• Parties: MCWHORTER v. DRAUGHN et al

98 So. 597

134 Miss. 247

MCWHORTER v. DRAUGHN et al

No. 23808

Supreme Court of Mississippi

January 21, 1924

Division A

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

Action by B. C. McWhorter against Will Draughn and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Judgment reversed and case remanded.

Currie & Smith, for appellant.

The action of the lower court is erroneous because the plaintiff's injuries were due solely to the negligence of the defendants. Public highways are constructed for purposes of travel, and freedom of travel is not to be obstructed and rendered dangerous by obstructions which the fancy or convenience of private pursuits may suggest. The right of the public to travel freely and without obstruction upon the public highway is primary and paramount, and any person who conducts his private pursuits in such a manner as to obstruct the highways so as to render them dangerous to travellers assumes liability for the consequent injuries which naturally and directly result from such an act.

It is abundantly shown by the testimony that the plaintiff was travelling with reasonable care and all proper caution, for his own safety. The plaintiff's testimony shows that he was watching to see whether any person from either side of the road would attempt to go upon the road. He certainly could not be required to presume that the defendants had blockaded the road with a log chain.

We submit that this testimony unmistakably shows that the plaintiff was exercising more than reasonable care and caution for his own safety, and that the defendants were highly negligent, and that the injuries resulted as a direct consequence of this negligence. If we are mistaken in this we respectfully submit that the facts should certainly have gone to the jury.

Draughn & Waller and Stevens & Heidelberg, for appellees.

The undisputed testimony shows that the plaintiff knew that these loading operations had been taking place at this point for a period of several months prior to the accident. The plaintiff had defective eyesight, being nearsighted, the defect being a congenital one, and as a result he had never been able to get any glasses that would materially improve his eyesight.

The testimony further shows that when the plaintiff turned the curve two hundred twenty yards above the point where the accident happened he looked down the road, and, seeing no obstruction he then looked to the left the way he was travelling, where he saw some men and teams, and continued on down the road, without ever looking at the road again, and without even seeing the truck or the chain across the road until he got within a point about ten or twelve feet of the chain, when he heard someone "holler," and then looked for the first time and saw the chain across the road although the undisputed testimony shows that it was across the road all the time. The chains that were stretched across the road temporarily in the manner aforesaid, were plain open and obvious. Every possible effort was made to stop the plaintiff.

On this stale of facts the court below very properly sustained a motion made by appellees for a peremptory instruction. This court has said in the case of Ulmer v. Pistole, that it is not alone sufficient for the driver of an automobile to believe that the way is clear, but that he must know it is clear.

Counsel for appellant, in briefing this case are proceeding upon the erroneous idea that any sort of obstruction of a public road, whether temporary or permanent; whether necessary, convenient, or otherwise, is an unlawful use of a public road, and, therefore, constitutes negligence per se. Every sort of use of a public road, of itself, necessarily creates an obstruction of some portion of the road itself.

We concede that the sovereign state has the power, if it sees fit, to so regulate the use of public roads as to prevent either the loading or unloading of any sort of vehicle on the road, but the state of Mississippi has not seen fit to pass such a law. An examination of section 4396 of the Mississippi Code of 1906, discloses that before the person who obstructs the road becomes liable under that statute the obstruction must remain for twenty-four hours. The public highways of this state are constructed and maintained in order not only that human beings might travel upon them, but also in order that the wheels of commerce might be kept in motion.

Counsel for appellant stress the point that on either side of the public road there were open spaces that might have been reached, and where these logs might have been loaded, and that, therefore, the use of the public road in the manner in which it was used on this occasion was not absolutely necessary. It matters not whether the use of the road was necessary or not. This same vain...