Nehi Bottling Co. of Ellisville v. Jefferson, 39887

• Citation: 226 Miss. 586,84 So.2d 684
• Decision Date: 23 January 1956
• Docket Number: No. 39887,39887
• Parties: NEHI BOTTLING COMPANY OF ELLISVILLE and Claude Davis v. John JEFFERSON, Administrator of Estate of Rushell Jefferson, Deceased.
• Court: United States State Supreme Court of Mississippi

Page 684

84 So.2d 684

226 Miss. 586

NEHI BOTTLING COMPANY OF ELLISVILLE and Claude Davis v. John JEFFERSON, Administrator of Estate of Rushell Jefferson, Deceased.

No. 39887.

Supreme Court of Mississippi.

Jan. 23, 1956.

Lester Clark, Hattiesburg, William E. Andrews, Jr., Purvis, for appellants.

M. M. Roberts, Hattiesburg, E. F. Coleman, Purvis, for appellee.

ETHRIDGE, Justice.

This is an appeal from a verdict and judgment of the Circuit Court of Lamar County in the amount of $7,500 in favor of appellee, administrator of deceased's estate, against appellants Nehi Bottling Company of Ellisville, a corporation, and Claude Davis, driver of the company's truck. Since this case must be reversed and remanded for a new trial, primarily because of erroneous instructions and also for certain errors in the admission of testimony, the statement of facts which the jury was authorized to find will be abbreviated but sufficient to state the background and reasons for this decision.

Rushell Jefferson, a little Negro girl of the age of sixteen months, was the daughter of appellee administrator, John Jefferson, and his wife Nancy. She was run over and killed by appellant company's truck, driven by Davis, early in the afternoon of May 20, 1954, in the Town of Lumberton. Bay Street runs north and south, and on the east side of it is situated the Jefferson home. It is close to this narrow street. On the front of that lot is a fence with a gate, which when closed leaves a small opening between it and the post of the fence. Bay Street has a dirt and gravel surface and is graded to a width of twelve feet. On the west side of this street, across from the Jefferson home, is a small store owned and operated by the Jeffersons. The store sits back from the street more than sixteen feet, thus allowing room for a car or truck to park in front of the store and off of the graded portion of the street. Fifteen feet south of the store is Love Avenue, a street fifteen feet in width. There is a parking area of about fifteen feet north of Love Avenue and south of the store building, which has a door also on that side. Nancy and John, at the time of the accident in question, had four small children ranging in ages from sixteen months to seven years, who regularly played in their front yard. Davis had been making deliveries of bottled drinks to the Jefferson store across the street twice a week for eight months, and he knew that these children played there, and that they also came across the street on numerous occasions to the store.

Shortly after two o'clock that afternoon, Davis drove the truck north on Bay Street and pulled it over on the left or west side of the street in front of the Jefferson store for the purpose of making a delivery of a case of bottled drinks. Approximately three to four feet of the right-hand side of the truck was jutting out on the graded portion of the west side of the street. When the truck drove up, Nancy left her house where the children were playing, closed the gate, and went across to the store to receive the delivery. After she had paid Davis for the drinks, he walked out to the truck, placed an empty case of bottles in the rear, got in the cab, and pulled off to the right and north of the street without looking to see whether anyone was in the street and to the right of his truck. He had driven only a short distance perhaps not over 100 to 200 feet, before Nancy came to the door and saw Rushell's body near the center line of the street with her head and chest crushed on one side. There had been no other cars traversing this street during the period between her leaving the child in the yard and her coming back to the door and seeing the child in the street and the truck leaving.

H. H. Slade, town marshal, went to the scene and found a pool of blood in the street about six inches to the west of the center line. He asked Davis, who in the meantime had been notified of the child's death and had returned to the scene, where the truck had been standing. Davis showed him the place, and the truck's tracks. They followed the tracks out to where the pool of blood was located. At that point there was a blank space about fourteen inches in diameter where no tracks showed. The tracks then went north on the street.

The only witness for defendant was Davis. He stated that when he came out of the store he got in his truck and drove off, but that he looked at the rear of the truck; and that when he came out of the store he could see under the truck. He got in on the driver's side. He admitted that when he drove up there were a lot of children running around and that he 'didn't pay it any attention.' He also said that he looked, but the jury was amply warranted in believing that he did not look carefully enough, that when Davis drove off he failed to keep a proper lookout for children at this particular locality, when he knew that they were playing there, and that he failed to look to the right and on the east side of the road as he pulled off. Moreover, photographs in the record warranted the jury in concluding that even if he had looked toward the bottom part of the truck as he walked out of the store, he could not have adequately seen whether there was a child on the other side. So the jury was justified in finding that Rushell had crawled through the gate, that Davis failed to keep a proper lookout for children in this locality and under these particular circumstances, and that his negligence in this respect was the proximate cause of the child's death. Moreover, the great weight of the evidence supports the finding that appellant's truck ran over Rushell as it pulled out into the street driving north. Gordon v. Lee, 1949, 208 Miss. 21, 43 So.2d 665.

Appellants complain about the use by appellee's counsel in his closing argument of a chart on a blackboard outlining argumentatively appellee's claims as to the damages which the jury could consider. However, this previously has been decided adversely to appellant's contention. 4-County Electric Power Ass'n v. Clardy, 1954, 221 Miss. 403, 73 So.2d 144, 44 A.L.R.2d 1191; Sandifer Oil Co., Inc., v. Dew, 1954, 220 Miss. 609, 71 So.2d 752.

It was error for the trial court to admit testimony for plaintiff as to other accidents in which Davis allegedly was involved. This could have been admissible to obviate the necessity of proving agency, under the rule that where one entrusts a vehicle to one known to be a reckless driver, the former is responsible for the acts of the driver, although the driver was not about the owner's business. But in this case appellants' answer admitted that Davis was within the scope of his employment at the time and place in question, and Davis so testified.

Several instructions were granted appellee-plaintiff b...