Meridian Coca-Cola Co. v. Watson

• Decision Date: 01 June 1931
• Docket Number: 29325
• Court: Mississippi Supreme Court
• Parties: MERIDIAN COCA-COLA CO. et al. v. WATSON et al

134 So. 824

161 Miss. 108

MERIDIAN COCA-COLA CO. et al. v. WATSON et al

No. 29325

Supreme Court of Mississippi

June 1, 1931

Division A

1 AUTOMOBILES. Ordinance limiting speed on emerging into public highway did not apply to automobile emerging from underpass.

The ordinance prohibiting motor vehicles from emerging from any alley, stable, garage, filling station, or any other place into or upon any public highway of the city at a greater rate of speed than six miles per hour, but that part of the highway beneath railroad was as much highway as any other portion,

and the phrase "emerging from any other place," did not mean passing from one part of a public street to another part.

2 AUTOMOBILES.

Where speed limit sign was posted at entrances to underpass ordinance limiting speed to that indicated by signs did not apply, where automobile striking pedestrian had emerged from underpass.

3. MUNICIPAL CORPORATIONS.

Statute delegates, with certain limitations, to governing authorities of municipalities power to fix their own traffic rules within corporate limits within bounds fixed (Laws 1928, c. 201).

4. AUTOMOBILES.

Where city had regulated traffic within its limits, state regulation of eight miles an hour in passing pedestrians held inapplicable (Hemingway's Code 1927, section 6681; Laws 1928, c. 201).

5. AUTOMOBILES. Where automobile struck pedestrian after emerging from underpass, instructions to effect that it was unlawful to drive automobile at time and place at more than eight miles per hour held reversible error.

The instructions were erroneous, because none of the ordinances limiting speed to eight miles per hour were applicable, and Hemingway's Code 1927, section 6681, providing, in substance, that motor vehicle operator shall not pass foot passenger walking in highway at greater speed than eight miles an hour, did not apply, because city had passed ordinances regulating speed, and such ordinances permitted motor vehicles to pass point where accident occurred at greater rate of speed than eight miles an hour, unless such speed was unreasonable under the circumstances.

6. AUTOMOBILES.

Although automobile driver must be on lookout, pedestrian crossing street must also be on lookout for approach of vehicles.

7. AUTOMOBILES.

Contributory negligence of pedestrian struck by automobile which had emerged from underpass held for jury.

HON. J. D. FATHEREE, Judge.

Appeal from circuit court of Lauderdale county., HON. J. D. FATHEREE, Judge.

Action by J. B. Watson against the Meridian Coca-Cola Company and others. While the case was pending, plaintiff was adjudged non compos mentis, and W. R. Zachary was appointed his guardian, and made a party to the suit. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Reversed and remanded.

V. W. Gilbert, of Meridian, for appellants.

Section 25 of the ordinance of Meridian, prohibits emerging "from any alley, stable, garage, filling station or any other place, into or upon any highway of the city at a greater rate of speed than six miles per hour."

It is obvious that this section does not apply.

Section 41 of the ordinances of Meridian provides: "It shall be unlawful for any person to ride or drive any horse or team, or to run or operate any motorcycle or motor vehicle on any street in the city at such rate of speed as may be unreasonable or unsafe under the circumstances; nor at any greater rate of speed than may be indicated by traffic signs on the streets; nor in any case at more than fifteen miles an hour."

Assuming the validity of the sign "Reduce speed to eight miles an hour," it did not apply to the point where Mrs. Watson was struck. The eight miles per hour could not apply to the covered portion and not to the street or any part of the street leading to the subway. After emerging the speed of at least fifteen miles is unlawful under the ordinance as a matter of law, in the absence of circumstances or conditions making it otherwise unlawful.

Chapter 201 of the Laws of 1928, authorizes municipalities to regulate traffic by ordinances.

No person operating a motor vehicle, shall pass a person driving a horse or foot passengers walking in the roadway of the highway at a greater rate of speed than eight miles an hour.

Sec. 6681, Hem. 1927 Code.

The statute has reference to travellers using the highway for the same purpose as the motorist. It could not apply to every jay-walker in a municipality, and every loiterer in the streets. A man crossing a highway is not a passenger walking in the roadway.

Passing a traveller on the highway at a greater speed than eight miles would not be unlawful unless the driver saw him or ought to have seen him.

The negligence which the plaintiff complains of must be the proximate and not the contributing cause of the injury or damage.

Pascagoula St. R. & P. Co. v. McEachern, 109 Miss. 380.

Williamson & Clayton, of Meridian, for appellees.

A judgment will not be reversed because of an erroneous instruction where the right result was reached and a new trial will not be granted in a case where it appears that justice has been done.

McMullen v. Mayo, 8 S. & M. 298; Barringer v. Nesbit, 1 S. & M. 22; Bell v. Medford, 57 Miss. 31; Nichols v. Gulf & Ship Island R. Co., 36 So. 192.

Instructions must be taken as an entirety, that is, each must be considered in connection with others of the series referring to the same subject and connected therewith, and if, when taken together, they properly express the law as applicable to the particular case, no just ground of complaint exists, even though an isolated and detached clause is, in itself, inaccurate or incomplete and although some of them taken separately may be subject to criticism.

14 R. C. L., p. 817, sec. 76.

No person operating a motor vehicle, shall pass a person driving a horse or foot passengers walking in the roadway of the highway, at a greater rate of speed than eight miles an hour.

Chapter 116 of Laws of Mississippi, 1916, sec. 3, pp. 168, 169.

The above statute applies to this case and instructions granted were correct.

Trussel v. Breland, 131 So. 287; Gardner v. Comer, 118 So. 300; Pounders v. Day, 118 So. 298.

The driving of automobile at an unlawful and dangerous rate of speed upon a frequently used street in a populous part of a city is negligence per se.

Ulmer v. Pistole, 76 So. 522.

The city ordinance on the question of speed was part of the law applicable to this case.

Chapter 201 of the Laws of Mississippi of 1928.

Section 25 of said ordinances prohibits emerging "from any alley, stable, garage, filling station or any other place, into or upon any public highway of the city at a greater rate of speed than six miles per hour."

It is clearly applicable except for the printed traffic signs there which say "Reduce speed limit to eight miles an hour." That sign may place a limit upon that ordinance.

Where defendant's truck without warning, emerged from doorway and collided with plaintiff's passing automobile, judgment for plaintiff was proper.

Peters v. Crescent Forwarding & Transportation Co., 130 So. 367.

The driver of an automobile must keep his machine constantly under control; he must continue on the alert for pedestrians and others using the streets, and must anticipate their presence. To assume that the way is clear is not his right. The fact that he was unaware of the presence of other in no way extenuates conduct which would have been wantonly reckless, had he known that another person or vehicle was crossing his pathway. Especially must he expect and look out for other vehicles and persons at such places as street intersections and corners, shopping centers and other familiar places by and through which the main currents of the population habitually pass.

It has even been held that the failure to see a pedestrian in the street amounted to negligence.

Ulmer v. Pistole, 76 So. 522.

Argued orally by Victor W. Gilbert, for appellant, and by Nate S. Williamson, for appellee.

OPINION

McGowen, J.

The appellee J. B. Watson sued the Meridian Coca-Cola Bottling Company and others, appellants, for damages for injuries resulting in the death of his wife, Mrs. Ganie Watson, alleged to have been caused by the negligence of the driver of the bottling company's truck. Issue being joined, the case was tried and submitted to a jury, resulting in a verdict for twenty thousand dollars; and from the judgment thereon in the court below, defendants prosecute an appeal here. While the case was pending Watson was adjudged non compos mentis, and W. R. Zachary was appointed his guardian, and made a party to the suit.

The facts essential to an understanding of the opinion are as follows: In the early afternoon of November 8, 1929, Mrs. Ganie Watson, wife of the appellee, a pedestrian on the sidewalk, had proceeded through a subway on Twenty-Eighth avenue in the city of Meridian, going from the south, northward to the business center of the city. The subway, or underpass, is about four hundred feet in length, along the west side of which a sidewalk extends north and south, with a guard rail along its outer edge from the entrance on the north and twenty-seven feet north. When she reached the end of the guard rail, Mrs. Watson started across this street, ostensibly for the purpose of ascending a stairway built by the city, consisting of about seven steps. There was no sidewalk on the east side, but this stairway, which connected with a concrete sidewalk on the surface leading to the business center, is guarded by a railing extending a few feet into the street, about opposite the guard rail on the west side.

The subway or underpass was constructed for the purpose of accommodating...