Mercier v. Davis
| Decision Date | 27 April 1970 |
| Docket Number | No. 45769,45769 |
| Parties | Albert L. MERCIER v. Katharine Armstrong DAVIS and L. F. Allen, Sr. |
| Court | Mississippi Supreme Court |
Norman Breland, Holleman & Necaise, Gulfport, for appellant.
Greaves & Terry, Gulfport, William H. Myers, Bryan, Gordon, Nelson & Allen, Gulfport & Pascagoula, for appellees.
Albert L. Mercier, hereinafter plaintiff, brought suit against Katharine Armstrong Davis and L. F. Allen, Sr., in the Circuit Court of Jackson County for personal injuries allegedly sustained in a three car accident. The jury returned a verdict for both defendants and judgment was entered accordingly. Therefrom plaintiff appealed to this Court. The case is reversed because of errors in the jury instructions.
A lengthy line of traffic was proceeding in an easterly direction on U. S. Highway 90, which at a point west of Bay St. Louis in Hancock County, Mississippi, consisted of two lanes, one for eastbound traffic and one for westbound traffic. Most of these vehicles were traveling at a rate of about forty-five miles per hour except defendant Allen in the final car, who was traveling somewhat faster. Of the several vehicles in front of plaintiff, a military vehicle was immediately ahead at a distance of about one hundred twenty-five feet. Immediately behind plaintiff was defendant Davis who was followed by defendant Allen. A Pontiac, being driven by Jack Calloway, was parked on the south shoulder of the highway headed east. Just after plaintiff passed the Pontiac, it entered the eastbound traffic lane and then suddenly moved into the westbound lane forcing the westbound traffic onto the north shoulder. Somewhere ahead the Pontiac returned to the eastbound lane causing the vehicles in front of plaintiff to stop. Plaintiff thereupon stopped behind the military vehicle. The Davis-driven vehicle ran into the rear of plaintiff's station wagon. Then defendant Allen's car collided with the rear of the Davis Valiant which again struck plaintiff's station wagon. There is no substantial dispute regarding the above stated facts.
Two versions are presented regarding the purported negligence of defendant Davis. Plaintiff testified that after stopping behind the military vehicle, he looked in his rear view mirror and observed that the vehicles driven by the two defendants were about five hundred or more feet behind him and were approaching at a rapid rate of speed and that he was struck first by the Davis car, after which his station wagon was struck again. According to defendant Davis, she was traveling at a speed of forty-five miles per hour when the Pontiac suddenly entered the line of traffic behind plaintiff and in front of her before moving into the westbound lane causing two oncoming cars to pull onto the shoulder so as to avoid a head-on collision with the Pontiac. Defendant Davis had been following plaintiff about two or three car lengths for some time before plaintiff's brake lights appeared on plaintiff's car; at the time plaintiff's brake lights went on she was about thirty-six feet behind him and she determined that she would not be able to avoid a collision. Defendant Davis was not certain, however, whether the Allen car hit her before or after she struck plaintiff's vehicle.
Defendant Allen's testimony is that he approached the scene of the accident at a speed of approximately fifty miles per hour and in moderate to heavy traffic. When about seventy-five feet behind the Davis Valiant, he '* * * saw all the signal lights go on on her car and the others.' After the Pontiac 'darted out' in front of the Valiant, Allen stated that thereupon he Allen's car then struck the Valiant, knocking it forward. Allen admitted that since he was seventy-five feet back when 'the accident first started,' there had been time for him to stop.
Plaintiff contends that the verdict...
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