Moak v. Black

• Decision Date: 04 March 1957
• Docket Number: No. 40407,40407
• Citation: 92 So.2d 845,230 Miss. 337
• Parties: C. B. MOAK et al. v. John M. BLACK.
• Court: Mississippi Supreme Court

Page 845

92 So.2d 845

230 Miss. 337

C. B. MOAK et al. v. John M. BLACK.

No. 40407.

Supreme Court of Mississippi.

March 4, 1957.

Gordon & Kendall, Jackson, for appellants.

Lipscomb, Ray & Barksdale, Jackson, for appellee.

KYLE, Justice.

The appellants, C. B. Moak and his wife and three minor children, brought an action against the appellee, John M. Black, in the Circuit Court of Warren County to recover damages for the death of Clifton Ted Moak, a nine-year-old child, who was killed as a result of the appellee's automobile colliding with a bicycle on which Clifton Ted Moak was riding, on U. S. Highway No. 51 in Lincoln County. Upon the trial of the case in the court below, the jury returned a verdict in favor of the appellee, and judgment was entered accordingly. The court overruled the appellants' motion for a new trial, and from the judgment rendered against them the appellants have prosecuted this appeal.

The appellants' attorneys argue two points as ground for reversal of the judgment of the lower court: (1) That the verdict of the jury was contrary to the overwhelming weight of the evidence, and the court erred in overruling the appellants' motion for a new trial; and (2) that the court erred in granting to the appellee certain erroneous instructions.

The record shows that the appellants are all residents of the City of Brookhaven, in Lincoln County, and that the appellee is a resident of Warren County. The accident which resulted in the injury and death of Ted Moak occurred on June 5, 1955, as he was returning to his home from a nearby cafe situated on the east side of U. S. Highway 51 several hundred yards north of his home. He had gone to the cafe to get change for Sunday School. The appellee was driving his automobile southwardly along the highway when he overtook and attempted to pass the boy on his bicycle. The collision occurred at a point about 125 feet from the entrance to the Moak driveway.

The appellants alleged in their declaration that the appellee was negligent in the operation of his automobile, in that he failed to keep his automobile under proper control and to keep a proper lookout for the child on the highway, that he failed to exercise reasonable care to anticipate and guard against the actions and movements of the child after he saw the child riding his bicycle on the highway, that he failed to sound his horn and continue to sound his horn until the child became aware of the fact that the automobile was approaching, and that he failed to diminish the speed of his automobile and to apply his brakes and come to a stop before striking the child.

Ted's mother testified she was in the back yard approximately 175 feet from the point where Ted's body was lying when she heard the collision. She heard no sound of an automobile horn immediately prior to the collision, and she heard no sound that would indicate that the brakes of an automobile had been applied before the collision. She went immediately to the scene of the accident. She found Ted lying on his right side; he was unconscious; and when Mrs. Moak placed her hand on the back of his head she found that it was bloody. The appellee's automobile had been brought to a stop on the shoulder of the highway near the entrance into the Moak driveway. The boy was carried to the hospital immediately, but died about 30 minutes later. Mrs. Moak testified that Ted was nine years of age and weighed about 50 pounds, and that he was in the fourth grade in school and of normal intelligence for a boy of his age.

E. C. Barlow, who was district attorney for the Fourteenth Judicial District at the time of the accident, testified that he received a telephone call from the chief of police of the City of Brookhaven a short time after the accident occurred, and was told that there had been a wreck on the highway and a child had been killed. He stated that he went to the police station immediately and talked to the appellee in the presence of the sheriff and other police officers. Barlow testified that the appellee stated to him that he was traveling south on the highway, and that the boy was taveling south ahead of him on a bicycle; that he saw the boy a good ways before he got to the place where the accident occurred; that he was driving his automobile at a rate of speed of about 35 or 40 miles per hour; and that just before he got to the boy, the boy began to lean over a little and pulled his bicycle a little over toward the center lane. Barlow stated that he asked the appellee whether he gave the boy any warning or signal that he was approaching. The appellee said, 'Yes, I blew my horn.' Barlow stated that the appellee was then asked how far he was from the boy when he blew his horn, and the appellee said, 'Twelve or fifteen feet,' and that the boy 'cut over into him.' The appellee said that he did not apply his brakes until after the boy turned in front of his car, and that he put his brakes on after he hit the boy. Barlow stated that he and the chief of police examined the appellee's car. They found a dent on the right front fender and a dent on the windshield, and the glass of the windshield was cracked.

Barlow stated that he and the chief of police went to the scene of the accident, and the appellee went with them. Barlow and the chief of police measured the distance on the highway from the point where the collision occurred to the place on the shoulder where the appellee stated that he brought his car to a stop. The distance was 135 feet. Barlow stated that there were no skidmarks on the pavement, but about 18 feet south of the point of collision it looked like the brakes had been applied. He stated that he examined the bicycle, and found that the left hand bar of the bicycle was bent and right pedal was broken off. He stated that the physical evidence on the pavement indicated that the greater part of the car was on the left side of the center line of the highway at the time of the collision.

Robert E. Case, the sheriff of Lincoln County, testified that he was with the disstrict attorney when the appellee was questioned about the accident. He stated that the appellee said that he saw the boy for quite a distance before the accident occurred, that he tried to drive around him, and that he blew his horn when he was about 12 or 15 feet from the boy. The appellee said, 'he didn't brake his car before he hit him, because is was so sudden, it looked like he pulled out in front of him.' The sheriff confirmed the statement made by the district attorney concerning the physical damage to the car and the bicycle. He stated that the bicycle appeared to have been hit about the midsection. Clyde Coker, the chief of police of the City of Brookhaven, testified that he was present when the appellee was questioned by the district attorney, and that the appellee stated that he was driving 35 or 40 miles an hour. The district attorney asked the appellee whether he made any effort to stop, and the appellee said that he did not make any effort to stop until the collision occurred. The appellee stated that the windshield of his car was broken by the little boy coming in contact with it.

Lynn Haggatt testified that he was sitting in his car in a private driveway about 150 feet from the point of impact when the collision occurred. His back was turned to the highway, and he did not see the collision. He learned about the accident about two minutes later, however, when he backed his car out onto the driveway and turned around and came into the highway. He saw the boy lying in the right lane of the highway going south about two or three feet from the center line. The bicycle was about 15 feet from the boy. The appellee's car was parked alongside Mr. Moak's driveway. Haggatt stated that he heard no sound of a horn immediately prior to the accident.

The appellee, testifying in his own behalf, stated that he left Vicksburg about 7:00 o'clock Sunday morning in his 1950 Plymouth automobile expecting to drive to McComb. He passed through Crystal Springs and down U. S. Highway 51 to Brookhaven. He saw the boy on the bicycle when he was in the vicinity of the Pan American Service Station located on the east side of the highway. There were no other automobiles in sight when he passed the service station. The appellee stated that he was driving about 35 or 40 miles an hour when he passed the service station, and as he approached the boy on the bicycle he saw no vehicle coming from the south and he started bearing to his left, in order to give the boy on the bicycle ample room. The appellee then side, 'the closer to him I got, the farther over to my left I got, and at one time, I don't know the distance, he turned his head slightly, it looked like to see if anybody was coming, and I figured he knew my presence; he could hear the traction of the car and the sound of the motor, and when I got pretty close to him he made this sudden lefthand turn and I did everything in my power trying to eliminate hitting him, I applied my brakes and blew my horn and cut the car shortly to my left.' The appellee stated that the boy gave no signal when he made the sudden turn. The appellee stated that he applied his brakes at that time, but did not skid his wheels. On cross-examination the appellee stated that the weather was clear, the visibility was good; that he saw the boy on the bicycle; and there was no question in his mind about it being a child on the bicycle. He stated that he was driving about 35 miles an hour, and when he was about half way between the service station and the point where the accident occurred, he eased his speed a little bit and took his foot off the accelerator. The boy was right in front of him when he blew his horn and applied his brakes. He was 10 or 15 feet from the boy at that time--'I was pretty close to him.' The appellee stated that he did not blow his horn until he got within 12 or 15 feet of the boy, and that he blew his horn one time. He was...