Myers v. Tims

• Court: Mississippi Supreme Court
• Writing for the Court: Griffith, J.
• Citation: Myers v. Tims, 161 Miss. 872, 138 So. 578 (Miss. 1932)
• Decision Date: 04 January 1932
• Docket Number: 29615
• Parties: MYERS v. TIMS

138 So. 578

161 Miss. 872

MYERS v. TIMS

No. 29615

Supreme Court of Mississippi

January 4, 1932

Division B

1 EVIDENCE.

Practices respecting use of automobiles are within that universal knowledge of which courts may take judicial notice.

2 AUTOMOBILES.

Motorist on right of way street under ordinances has no right of way at intersection, unless he arrives at approximately same time as vehicle on cross street.

HON. W A. WHITE, Judge.

APPEAL from circuit court of Harrison county HON. W. A. WHITE, Judge.

Action by Virginia T. Tims against H. J. Myers. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Lester E. Wills, of Hattiesburg, for appellant.

The operator of an automobile is not an insurer against injury to persons or property, but that his duty is merely to exercise reasonable and ordinary care.

House v. Cramer, 134 Iowa 374 at 376, 112 N.W. 3, 10 L. R. A. (N. S.) 655, 13 Ann. Cas. 461.

The degree of care and caution which is required is that which an ordinarily prudent person would exercise under similar circumstances.

Massie v. Barker, 224 Mass. 420 at 423, 113 N.E. 199.

The basic rule is, as it has always been, that liability is predicated upon the fact that the injury complained of was due to the negligence of the defendant or of some person for whose negligence the defendant is responsible.

Hattiesburg Chero Cola Bottling Co. v. Price, 141 Miss. 892, 106 So. 771.

In an action to recover damages for injuries sustained as the result of the operation of a motor vehicle, it is essential that the plaintiff prove by a preponderance of the evidence that the person sought to be charged was negligent.

Farrar v. Whipple, 65 Cal.App. 123, 223 P. 80; Barabin v. Teche Transfer Co., 1 La. App. 197; Wilkinson v. Turnbull, 126 Minn. 29, 206 N.W. 950; Ackerman v. Fifth Ave. Coach Co., 127 A.D. 508, 162 N.Y.S. 49; Hockster v. Rosenheim, 198 N.Y.S. 228; J. A. Bailey, Inc., v. Fellows, 180 N.Y.S. 399; Nordby v. Sorlie, 35 N.D. 395, 160 N.W. 70, L. R. A. 1917B, 753; Stidell v. Davidson (Wash.), 253 P. 458.

Any such person so operating, or causing to be operated a motor vehicle shall, at the intersection of public highways, streets, avenues or alleys of any city, town, or village, keep to the right of the intersection of the centers of the highways when turning to the right and to pass to the right of such intersections when turning to the left.

Section 5574, Code of 1930.

Where two cars are approaching in opposite directions and the driver of one intends to make a left turn into an intersecting street, it is his duty so to watch and time the movement of the other car as reasonably to insure himself of a safe passage either in front or rear of said car, and he must even stop and wait for the passage of the other if this is reasonably necessary to avoid danger. It is his duty not to make a left turn into or across the path of another vehicle which is approaching in the opposite direction and is so near at hand that such a turn makes a collision probable, and this duty exists irrespective of any question of right of way.

42 C. J., p. 997.

Under the regulations fixing right of way according to compass direction of travel or giving preference to travel on certain highways, a left turn of one vehicle at an intersection will obviously change its course from the favored to the disfavored direction or vice versa. If the turn changes its direction from the favored to the disfavored direction it is clear that the car which, proceeding on its course continues in the favored direction, has the right of way.

42 C. J., section 717, p. 991.

The questions of negligence and proximate cause are for the jury, yet when the evidence is unconflicting and conclusive that the appellee was negligent and that her negligence was the proximate cause of the injury there can be no cause to submit to the jury and a verdice rendered in favor of the appellee will be nullified.

Flowers v. Stringer, 120 So. 198, 152 Miss. 897; Frazier v. Hull, 127 So. 775, 157 Miss. 303; Whalen v. Dunbar, 115 A. 718; Hussa v. Kranich, 199 N.Y.S. 781; Boyles v. Plumb, 141 A.D. 786, 126 N.Y.S. 425; Stidell v. Davidson, 253 P. 458.

It has been considered that regulations establishing right of way according to direction of travel apply only to the intersection, that is, up to the point where one vehicle enters the area which is common to the two highways, so that the vehicle first entering the intersection is entitled, even though it is traveling in the disfavored direction, to cross ahead of the other vehicles. Such a view is however, open to the criticism, at least with respect to regulations giving the right of way to vehicles approaching from the right, because it is obvious that the vehicle on the left actually entered the intersection of the highways before the other vehicle, and yet the position of the two vehicles may be such that the vehicle on the right will be closer to the point where the paths of the two vehicles cross, and because, in view of the speed at which automobiles travel, safety demands that the right of way be determined before either car has entered the intersection. Accordingly the better view is that the right to pass ahead should be determined according to proximity to the point where the paths of the two vehicles will cross if each continues on its way, and that unless the vehicle traveling in the disfavored direction is so much closer to that point that it is reasonably apparent that it may, with entire safety, reach and pass that point before the other vehicle reaches it, the vehicle approaching in the disfavored direction must yield.

42 Corpus Juris 990, section 710; Fox v. McCormick, 110 Kan. 91, 202 P. 614.

An automobilist who is himself observing the regulations for traffic on the highway has a right to the use of the highway which is superior to that of one who is violating traffic regulations and if he has no warnings of danger, he is not required to anticipate that some other user of the highway will unexpectedly violate the rules of the road or traffic regulations and thus create a situation of danger. It has also been held that the driver of a motor vehicle may rely upon observance of traffic ordinances by other vehicles which are...