Moore v. Taggart, 40778

Decision Date28 April 1958
Docket NumberNo. 40778,40778
Citation233 Miss. 389,102 So.2d 333
PartiesMrs. Millie MOORE v. Mrs. Betty TAGGART.
CourtMississippi Supreme Court

Carter & Van Every, Columbus, for appellant.

Sams & Jolly, Columbus, for appellee.

KYLE, Justice.

This case is before us on appeal by Mrs. Millie Moore, plaintiff in the court below, from a judgment of the Circuit Court of Lowndes County, rendered in favor of Mrs. Betty Taggart, the defendant, in an action for damages for personal injuries alleged to have been sustained by the plaintiff as a result of the defendant's negligence in the operation of an automobile driven by the defendant and in which the plaintiff was riding at the time of the injury.

The record shows that the appellant and the appellee were employees of the Caledonia Manufacturing Company at the company's garment plant located in the Town of Caledonia, in Lowndes County. Both parties lived on or near State Highway No. 12, several miles east of Caledonia. The appellant rode to the plant each morning with the appellee, as a share-the-expense guest, in a 1951 Ford automobile driven by the appellee, which was owned by the appellee's husband, E. J. Taggart, and when the day's work was done, the appellant returned to her house in the same automobile. The accident complained of occurred on September 14, 1956, about 4 o'clock p. m., a few minutes after the appellee and the appellant left the plant to return to their homes. While the appellee was driving the car southwardly along a narrow street running from the garment plant to Main Street in the Town of Caledonia, the appellant and the other two occupants of the car observed another automobile, which had left the plant ahead of them and was proceeding in the same direction, come to a stop at the Main Street intersection where there was a stop sign. The appellee applied her foot brake but the foot brake failed to function properly and the appellee's automobile collided with the automobile in front of her which had come to a stop. The appellant was thrown forward and injured as a result of the impact.

The plaintiff alleged in her declaration that the defendant was negligent in failing to maintain a proper lookout as she approached the Main Street intersection for other vehicles using the street or parked thereon, and in failing to bring her automobile under proper control immediately after she saw the other automobile parked in the street at the stop sign, and in failing to operate her automobile in a careful and cautious manner at a reasonable rate of speed, and in failing to have the brakes on her automobile properly functioning, so that said brakes would stop the automobile in cases of emergency and in case it became necessary to stop it. The plaintiff further alleged that the defendant's negligence in the above mentioned particulars was the proximate cause of the collision, as a result of which the plaintiff was injured.

The defendant in her answer denied the material allegations of the complaint, and as affirmative matters of defense, the defendant averred that the automobile which she was driving was in good mechanical condition prior to the accident; that the brakes of said automobile were in good working order, until just before the collision; and that the accident was due to the failure of the brakes on the defendant's car to function properly, and that said brake failure created a sudden emergency that was due to no fault of the defendant. The defendant also averred in her answer that the plaintiff received no injuries as a result of said accident.

The case was submitted to the jury upon the testimony of the witnesses and the instructions of the court, and the jury returned a verdict for the defendant. The plaintiff's motion for a new trial was overruled, and judgment was entered for the defendant.

The appellant assigns as errors the following: (1) That the court erred in refusing to sustain the plaintiff's motion for a directed verdict against the defendant on the question of liability and the submission of the case to the jury solely on the question of the amount of damages; (2) that the court erred in granting to the defendant certain instructions which will be discussed later in this opinion; and (3) that the court erred in refusing to grant the appellant a new trial on the ground that the verdict of the jury was contrary to the overwhelming weight of the evidence, and so unreasonable as to evince bias and prejudice on the part of the jury.

There is but little conflict in the testimony of the witnesses. The defendant, Mrs. Betty Taggart, was called to testify as an adverse witness by the plaintiff. She testified that she was living on Route 1, Vernon, Alabama, on September 14, 1956, when the above mentioned accident occurred, and was working at the Caledonia Manufacturing Company's garment plant; that she drove from her home to the plant each day in a 1951 Ford automobile owned by her husband; and that the plaintiff, Mrs. Millie Moore, and Mrs. Icey Perkins rode in the car with her from their homes to their work at the garment plant. Each of them contributed $1.50 a week to help pay for the gasoline. She stated that she and Mrs. Moore and Mrs. Perkins got off from work at 4:00 o'clock p. m. on September 14, 1956, and started home; that they left the garment plant in the above mentioned automobile and drove southwardly toward the Main Street intersection, and as their car came over a rise about 75 feet north of the point of the Main Street intersection she observed a car stopped at a stop sign at the intersection. She stated that she was driving about ten miles an hour when she observed the car stopped at the stop sign; that she tried to apply her brakes, but the brakes did not function, and she shifted her gear into second in an effort to slow down, but she hit the rear end of the parked car before she could bring her own vehicle under control. She stated that she was not going over five miles an hour at the time of the collision.

Mrs. Taggart stated that the brakes on her car had been repaired about three or four weeks before the accident occurred and were in working order when she left the garment plant. She stated that the foot brake failed to work as she approached the Main Street intersection because of a broken wheel cylinder. She was asked if she pulled up or tried to apply the emergency brake; and she said that she did not. She stated that she knew the car had an emergency brake on it, but she said, 'I forgot all about it.' She was later asked what was the condition of the emergency brake on her automobile, and her answer was, 'They were all right the last time we used them.' Mrs. Taggart admitted that she had signed a statement for Mrs. Gladis Freeman, the owner of the parked car, immediately after the accident, in which she stated that the accident occurred as a result of her own fault.

Mrs. Millie Moore, the plaintiff, testified that she was riding in the car with Mrs. Taggart at the time the accident occurred. Mrs. Perkins was in the middle, and Mrs. Moore on the other side of Mrs. Perkins. When they came over a little slanting hill they saw that Mrs. Freeman was stopped down there at the intersection. Mrs. Taggart could not get her car stopped, so it hit Mrs. Freeman and knocked her car across the road. When the car in which she was riding hit Mrs. Freeman's car, the jolt knocked her off the seat, threw her down on the floor board and into the dashboard. The plaintiff was asked what Mrs. Taggart did to try to control the automobile. Her answer was, 'I think the most thing she done was getting excited and went to swerving the car all over the road.' She stated that Mrs. Taggart did not use the emergency brake. The plaintiff stated that she was injured as a result of the mishap; that she went home, got sick at the stomach and started vomiting, and went to bed; and the next morning she got up and went to a doctor. The doctor was not equipped to make an x-ray examination, but gave her a prescription of medicine to keep her easy, and she later went to Vernon Hospital for an x-ray examination, and stayed there from Saturday until Tuesday. She then went to the Columbus Hospital and was treated by Dr. Elton Thomas, and was still under the treatment of Dr. Thomas at the time of the trial.

T. L. Austin, a motor vehicle mechanic, testified that he familiar with the braking system of a 1951 Ford automobile, and about all other kinds of braking systems; that the hand brakes are hooked up with the back wheel brakes, and there is a lever that works the hand...

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