Murphy v. Willingham

• Decision Date: 30 March 1931
• Docket Number: 29322
• Court: Mississippi Supreme Court
• Parties: MURPHY v. WILLINGHAM

133 So. 213

160 Miss. 94

MURPHY v. WILLINGHAM

No. 29322

Supreme Court of Mississippi

March 30, 1931

Division A

APPEAL from circuit court of Webster county, HON. JNO. F. ALLEN Judge.

Action by Gladys Murphy against A. P. Willingham. Judgment for the defendant, and the plaintiff appeals.

Affirmed.

Magruder Walker & Magruder, of Starkville, for appellant.

To run a motor vehicle past a foot passenger walking in the roadway of the highway at a greater rate of speed than eight miles per hour is negligence.

Section 6681, Code of 1927.

To drive an 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, 115 Miss. 485, 76 So. 522.

The failure to blow horn of motor vehicle upon approaching a person walking in the roadway of a public highway is negligencee.

Section 6683, Code of 1927.

It is almost axiomatic that a small boy of eleven years cannot be a competent driver. And a father who permits his eleven-year-old son to drive an automobile is himself negligent.

Section 6688 of the Code of 1927; Herman v. Maley, 132 So. 542.

A son becomes the servant of his father when the duty has been imposed upon him by the father of driving the automobile when used for the convenience of himself or the members of his family.

Winn v. Haliday, 109 Miss. 691, 69 So. 685.

T. W. Scott, of Eupora, for appellee.

The relation of master and servant did not exist between the appellee and his son, the driver of the car, nor at the time of the accident was the car being used for the purposes of appellee, nor was the appellee guilty of negligence in permitting his son to drive the car.

Smith v. Dauber, 125 So. 102.

The transporting of the children to and from school, under the circumstances detailed herein, was not the business of the master who was the father in this case.

There is no law, fixing any age limit for a driver. The only question was whether or not the son was competent and careful driver.

OPINION

Smith, C. J.

The appellant was struck and injured by an automobile driven by a son of the appellee, and she sued him for damages resulting therefrom. At the close of her evidence, it was excluded from the consideration of the jury, and a verdict was directed for the appellee.

We shall assume, for the sake of the argument, that the negligence vel non of the driver of the automobile was for the determination of the jury. The driver was eleven years and nine months old, and had been driving an automobile for about three years, and the only evidence relative to his efficiency as a driver is that "he was a good driver; he was not reckless; he was always careful; . . . he always drove at a moderate speed." The appellant was walking along, and stepped suddenly toward the center of a public street, when she was struck by the automobile coming from the rear. No signal of the approach of the automobile was given. She testified, though her source of information thereof does not appear, that the automobile did not "have a horn on it that would blow." The following answers and questions appeared in the testimony of the appellee, who was introduced as a witness for the appellant:

"Q. Do you know whether the horn on the car was working at the time? A. No, I don't, I couldn't say.

"Q. You couldn't say? A. Sometimes--it is like all other Fords that has been run that long, sometime it is disconnected and won't blow, but I don't remember about that time."

The appellant's...