McWhorter v. Draughn

• Decision Date: 26 January 1925
• Docket Number: 24562
• Citation: 102 So. 567,137 Miss. 515
• Court: Mississippi Supreme Court
• Parties: McWHORTER v. DRAUGHN et al. [*]

102 So. 567

137 Miss. 515

McWHORTER v. DRAUGHN et al. ^[*]

No. 24562

Supreme Court of Mississippi

January 26, 1925

Division B

1. APPEAL AND ERROR. Holding on prior appeal held law of case on subsequent appeal.

Holding on former appeal that defendants were negligent in stretching dark chain across public highway six feet above ground at dusk, and that automobile driver's failure to see chain or hear warning of its presence would only be contributory negligence on his part, which would go to diminishment of damages, held law of case on subsequent appeal.

2 HIGHWAYS. Automobile driver not required to anticipate unusual obstructions on highway.

Automobile driver was not required to anticipate unusual obstructions on public highway.

3 HIGHWAYS. Persons who stretched dark chain across highway at dusk assumed responsibility for injury to automobile driver.

Persons who stretched dark chain across public highway six feet above ground at dusk assumed responsibility for injury received by automobile driver who ran into chain.

HON. R S. HALL, Judge.

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.

This is the second appearance of this case in this court. See McWhorter v. Draughn, et al., 134 Miss. 247, 98 So. 597. At the conclusion of the testimony, the plaintiff and the defendant moved for a peremptory instruction, and both were refused. We respectfully submit that the lower court erred in refusing instructions for the plaintiff, including the peremptory instruction, and that the court erred in giving certain instructions for the defendant, and because the verdict of the jury is contrary to the law of this case, as well as to the facts. We submit that the cause should be reversed for the assessment of damages, because the entire record shows that the plaintiff's injuries were due to the negligence of the defendants, and further, that the defendants were engaged in a dangerous operation, and that they had absolutely no right under the law to obstruct the public highway by stretching a dangerous chain four or five feet from the ground, clear across the public road. It is negligence of itself to conduct any such operation, regardless of how it is conducted, and there is an absolute liability upon the defendants for the results to any person who was using the highway for a lawful purpose. The court erred in refusing a peremptory instruction for the plaintiff. We submit that a reading of the record not only demonstrates that the plaintiff was exercising ordinary and reasonable care, but that the defendants were guilty of negligence. They did not deny having blockaded the road with a log chain stretched in the air, which could not be visible to an ordinary traveler, and for which he could not be expected to look, and the only excuse seems to be that the plaintiff was somewhat near-sighted, and that they made certain futile efforts to warn him of the danger. The record demonstrated that their efforts were wholly insufficient and that they were not effective.

The fact that the stretched chain was obvious to the traveller would not relieve appellees of the negligence in stretching it across the road; because this fact could mean no more than that the appellant was guilty of contributory negligence in running into the chain, which would only go to a diminishment of damages. We submit that this cause should be reversed for the assessment of damages.

Stevens & Heidelberg, for appellees.

This case was tried in the court below and submitted to the jury upon the theory of negligence. There was no conflict in the instructions of the court, and when this court shall have read these instructions it will be apparent and clear that the jury were instructed that they might be authorized to find for the defendants only in the event the defendants did all that a reasonably prudent person under the same circumstances would have done in an effort to warn the plaintiff of the temporary danger that existed. Counsel for plaintiff contend, however, now that this cause should never have been tried upon this theory but that the plaintiff was entitled to recover regardless of the efforts made by the defendants to warn the plaintiff of the danger. We presume that counsel for appellant take this position upon the idea that the obstruction of the road in the manner above detailed constituted negligence per se. If these operations did not constitute negligence per se, then certainly the case was submitted upon the proper issue. "In order that an act shall be deemed negligent per se, it must have been done contrary to the statutory duty or must appear so opposed to the dictates of common prudence that we can say without hesitation or doubt that no careful person would have committed it." Words and Phrases, First Series, 4766. "It is well settled that in order that an act shall be negligence per se, it must have been done contrary to a statutory duty, or it must appear so opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have committed it." Words and Phrases, Second Series, 578.

Section 4396, Code of 1906, provides that if any person shall in any manner obstruct a public road and not remove the obstruction within twenty-four hours, he shall be liable for all damages occasioned to another by such obstruction. Had the obstruction complained of in this case remained across the public road for a period of twenty-four hours, then its existence would have been negligence per se and the defendant would have been liable regardless of what effort was made to warn the public because of the plain provisions of the statute. They would have been liable because the statute provided for such liability. However, the obstruction on this occasion did not remain for twenty-four hours but remained for a very few minutes only, and, therefore, the defendants violated no statutory duty. The evidence in this case does not disclose that other reasonably prudent men engaged in the same kind of work did not occasionally load logs in the same way. How could this court say as a matter of law that the thing done on this occasion was so opposed to the dictates of common prudence that it can be said without hesitation or doubt that no prudent person would have committed it? It is not every obstruction of a public highway, whether it be road, street or sidewalk, which is prohibited by law. The carrying on of the commerce of this Nation involves constant obstructions of various kinds, both to the roads, to the streets and the sidewalks throughout the entire land. Every loading or unloading of any sort of vehicle while the vehicle is standing in the street, constituted to that extent an obstruction of the street. Welch v. Wilson, 101 N.Y 254, 54 A. R. 698; Press v. Penny, 242 Mo. 98, 18 A. L. R. 794; Searcy v. Noll Welty Lumber Co., 243 S.W. 318, 23 A. L. R. 813. In Callahan v. Gilman, 107 N.Y. 360, it is said that the use of a bridge made of skids to load or unload a single truck by placing it from the stoop of a building across...