Mississippi Power Co. v. McCrary
| Decision Date | 27 September 1937 |
| Docket Number | 32696 |
| Court | Mississippi Supreme Court |
| Parties | MISSISSIPPI POWER CO. et al. v. MCCRARY |
1 AUTOMOBILES.
In action for death of truck driver who was struck by bus at or about an intersection while driving under influence of intoxicants, evidence of bus driver's negligence, in view of speed maintained by bus across intersection, held for jury.
2 TRIAL.
In action for death of truck driver killed in automobile collision, permitting jury to view scene of accident was within court's discretion, notwithstanding changes in situation since time of accident, which were not such as to interfere with jury's determining at what point drivers of colliding automobiles could see each other (Code 1930 section 2066).
3 TRIAL.
Permitting counsel for plaintiff to renew motion for view of scene of accident, in jury's presence was not reversible error, where opposing counsel had already reserved objection to such motion and hence did not have to renew objection (Code 1930, section 2066).
APPEAL from circuit court of Lauderdale county HON. ARTHUR G. BUSBY, Judge.
Action for wrongful death by Mrs. Catherine McCrary against the Mississippi Power Company and Ira H. May. From a judgment on a verdict for plaintiff, defendants appeal. Affirmed.
Affirmed.
Wilbourn, Miller & Wilbourn, of Meridian, and Eaton & Eaton, of Gulfport, for appellants.
Pete McCrary, at the time and occasion of the injuries to him and his death, and immediately prior thereto, was driving a truck under the influence of intoxicating liquors so that he could not safely drive such truck, and that he was driving such truck at the time at an excessive and unlawful rate of speed.
Appellants contend that if under all the evidence in this case they are not entitled to a reversal of this cause and judgment here in their favor, then the verdict against them on all the proof is so overwhelmingly contrary to the preponderant testimony of all the witnesses who were in the best position to know the facts and whose statements conformed to the established and uncontroverted physical facts as that no judgment contrary to such testimony should be allowed to stand, it being manifest therefrom that the verdict against appellants could not possibly be based on any ground but prejudice, bias, passion and gross indifference on the part of the jury to the right and justice of the cause.
This case should be reversed and remanded for the error of the court below in sustaining the motion made by the appellee after the appellee's testimony had been introduced in the case and finally granted by the court, after all the testimony for both sides was introduced in the case, to allow the court and the jury to view the place at which the collision occurred, which was done over the objections of the appellants.
It was improper for the court to permit the jury to go to the place of the accident and view the place because it is not in the same condition as it was at the time of the accident.
We submit that no evidence nor sworn statements were submitted to the court for the necessity of the jury viewing the premises. The only testimony that was taken on the motion was as to the changed conditions at the place of the accident between the time of the accident and the trial of the cause.
We submit that the viewing of the premises by the jury was not of essential aid to them in arriving at a correct verdict.
We submit that it certainly was not shown that it was impracticable and inefficient to present the material elements to the jury by the photographs, maps and the like that had been introduced in the case.
There is no question but that material changes had taken place at the scene of the accident between the day of the accident and the viewing of the premises by the jury.
We therefore respectfully submit that it was reversible error for the court to allow the jury to view the premises after all the testimony had been introduced.
National Box Co. v. Bradley, 171 Miss. 28, 157 So. 91; Great Atlantic & Pacific Tea Co. v. Davis, 171 So. 550.
Reily & Parker, of Meridian, for appellee.
The driver of the bus was guilty of negligence in causing the bus to be operated at an unlawful rate of speed, and the overwhelming weight of the testimony establishes this negligence. The driver of the bus was guilty of negligence in not keeping a proper lookout as he entered this intersection, and he was also guilty of negligence in failing to keep a proper lookout as he proceeded across this intersection. The driver of the bus was guilty of negligence, even if he did keep a proper lookout, in failing to use reasonable care after seeing the approaching truck, to avoid the collision. And that each and all of these acts of negligence are shown by the overwhelming weight of the testimony.
If there was no element of negligence in this case other than the charge that the bus was being operated at a greater rate of speed than permitted by the ordinance, fifteen miles per hour, in connection with the proof that the deceased was applying his brakes and doing all that he could to avoid the collision, would make the liability of the appellants a question for the jury. The fact that the bus was being operated at an unlawful rate of speed is prima facie evidence of negligence, is negligence per se, and so held by a number of cases. This rule of law will not be disputed.
McDonald v. Moore, 131 So. 824; Ulmer v. Pistole, 76 So. 522.
There were other elements of negligence of which the defendant was guilty in the Ulmer v. Pistole case, but it yet remains that the evidence shows that the defendant did not see the deceased and collided with the vehicle in which she was riding while running his automobile at an unlawful rate of speed, and the Supreme Court held that this speed was negligence per se and proximately contributed to the injury.
Snyder v. Campbell, 110 So. 678.
In the case at bar the driver of the bus states that he did not see the truck in which the deceased was riding until after the collision, and the overwhelming weight of the evidence is that the bus was being run at an unlawful rate of speed, and on these two facts there was a question for the jury.
Daniel v. Livingstone, 150 So. 662.
We think that if the bus driver was driving properly and at a lawful rate of speed and saw the approaching truck, and thereafter failed to exercise ordinary care proximately contributing to the collision, that the defendant would be liable, and in this case these matters were for the jury, and the judgment would be sustained on this theory if there were no other elements of negligence.
From the proof in the record, the jury was warranted in finding that in addition to the bus driver seeing the approaching truck and failing to do anything to avoid the collision, that the bus was being operated at an unlawful rate of speed, which would bring the case within the facts of Hadad v. Lockeby, 169 So. 691.
Ulmer v. Pistole, 76 So. 522; McDonald v. Moore, 131 So. 824; Daniel v. Livingstone, 150 So. 662; Aycock v. Burnett, 128 So. 100.
All the uncertainties within the realm of reason are for the jury, and the greater the uncertainty, the broader is the field and duty of the jury. All facts that are subject to different reasonable inferences are for the jury.
Bonelli v. Branciere, 90 So. 245; Ulmer v. Pistole, 76 So. 522.
The scene of this accident was within the corporate limits of the City of Meridian, and only a short distance from the court house, and the appellee deeming it of importance that the facts concerning the physical conditions existing at the time of the collision should be made as certain as possible, and that such conditions could be revealed by observation, desired that the court and the jury view the scene, and made a motion to that effect. When this motion was made, the same having been made out of the presence and hearing of the jury, the appellants objected to the motion being sustained on the grounds that the conditions that might be observed had been changed since the accident and that such observation was without evidential value, due to the fact that all evidential condition had been and would be fully shown by the other testimony, including maps and photographs. Whereupon, testimony was offered for the consideration of the court in ruling on the said motion, but when one witness had testified, it was agreed that the ruling on the motion would be deferred until all of the testimony had been heard, and that the motion then might be renewed and acted upon by the court. The taking of testimony on the general merits of the cause was then resumed and the motion was not renewed until all of the testimony, both for the appellee and the appellants, had been concluded.
When the motion was renewed, the appellant again objected and the grounds of objection again stated. The appellee in making this motion stated that the evidence was conflicting and could be better understood by seeing the surrounding conditions, and that such conditions had not been materially changed, and that the angle at which the roads crossed had not been changed, and that all objects, which could have obstructed the view of these drivers, were then the same as at the time of the accident. The appellants again objected, stating that the grounds of objection were the same as first stated, and that in addition thereto, other photographs and maps had been offered in evidence, and also that the testimony showed material changes in such conditions.
In stating to the court, at the close of the testimony, that the appellee desired to renew his motion, appellee's attorney said in the presence of the jury: ...
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