Oliver Bus Lines v. Skaggs

• Decision Date: 11 November 1935
• Docket Number: 31887
• Court: Mississippi Supreme Court
• Parties: OLIVER BUS LINES v. SKAGGS

164 So. 9

174 Miss. 201

OLIVER BUS LINES v. SKAGGS

No. 31887

Supreme Court of Mississippi

November 11, 1935

Division B

Suggestion Of Error Overruled December 9, 1935.

APPEAL from the circuit court of Yazoo county HON. JULIAN P ALEXANDER, Judge.

Action by D. S. Skaggs against the Oliver Bus Lines, Incorporated. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Wise & Bridgforth, of Yazoo City, and James W. Wrape, of Memphis, Tenn., for appellant.

The verdict of the jury is contrary to the preponderance of the evidence.

The doctrine announced by our court makes it apparent that the verdict is so overwhelmingly against the weight of the evidence that it is unconscionable and will not be allowed to stand.

City of Vicksburg v. Haralson, 101 So. 713; McWhorter v. Draughn, 137 Miss. 515, 102 So. 567; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Ripley v. Wilson, 140 Miss. 845, 105 So. 476; Huddy on Automobiles (5 Ed.), sec. 270, page 324.

The verdict of the jury is contrary to the law applicable in this case.

The violation of the law of the road is not conclusive on the question of the violator's negligence, it is only prima facie evidence of negligence, and he may show the surrounding circumstances indicating a necessity for turning to the left side of the highway.

Huddy on Automobiles (5 Ed.), sec. 270.

When a new and independent force intervenes between the negligence of the defendant and such injury and that new independent force or power or agency is then and there of sufficient strength or operative force to overcome and substantially supersede the original force or motion, that is to say, if the new and independent force or power is actually an efficient force or power, then the new force becomes the proximate cause, and the original cause, having been superseded, becomes the remote cause.

Public Service Commission v. Watts, 168 Miss. 235, 150 So. 192; Southern Pacific R. R. Co. v. Ralston, 62 F.2d 1026; Wharton on Negligence, sec. 314; Sherman & Redfield on Negligence (5 Ed.); City of Vicksburg v. Haralson, 101 So. 713; McWhorter v. Draughn, 137 Miss. 515, 102 So. 567.

Where a motorist is confronted by a sudden emergency he need only exercise ordinary care in the stress of circumstances to avoid the accident.

Vann v. Tankersley, 164 Miss. 748, 145 So. 642; Brookhaven Lbr. & Mfg. Co. v. I. C. R. R. Co., 68 Miss. 432, 10 So. 66; 42 C. J. 890, sec. 592.

The verdict of the jury is so excessive as to indicate caprice, passion and prejudice.

Sipes v. Michigan Central R. R. Co., 231 Mich. 404, 204 N.W. 84; Detroit, T. & I. R. R. Co. v. Newell, 235 Mich. 687, 209 N.W. 813; I. C. R. R. v. Williams, 110 So. 510; City of Jackson v. Carver, 82 Miss. 583, 35 So. 158; Teche Lines, Inc., v. Bateman, 162 Miss. 404, 139 So. 159.

There is no proof in the record to support the amount awarded.

The court erred in overruling the motion for a directed verdict.

Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; City of Vicksburg v. Haralson, 101 So. 713; Ripley v. Wilson, 140 Miss. 845, 105 So. 476; Vann v. Tankersley, 164 Miss. 748, 145 So. 642; Public Service Commission v. Watts, 168 Miss. 235, 150 So. 192; So. Pac. R. R. Co. v. Ralston, 62 F.2d 1026; Superior Oil Co. v. Richmond, 159 So. 850.

The proof clearly demonstrates the impossibility of the injury and accident occurring in the manner stated in the declaration.

The verdict of the jury in this case shows it resulted from passion and prejudice and is not responsive to the evidence.

This case is controlled by the rule that where one cause merely created a condition, and after the condition had been created, an intervening agency (North's backing car) produced the injury, then the first cause, if there was one, was not the proximate cause of the injury.

Public Service Commission v. Watts, 168 Miss. 235, 150 So. 192; Superior Oil Co. v. Richmond, 159 So. 850; So. Pac. R. R. Co. v. Ralston, 62 F.2d 1026; Aycock v. Burnett, 157 Miss. 510, 128 So. 100.

Neither section 5571, nor section 5569 of the Code of 1930, cited by appellee, aids him in this case. Either appellant is guilty of negligence, or the intervening independent cause absolves him from liability.

McDonald v. Collins, 144 Miss. 820, 110 So. 663; So. Pac. R. R. Co. v. Ralston, 62 F.2d 1026; Rowland v. Morphis, 158 Miss. 662, 130 So. 906.

Barbour & Henry, of Yazoo City, and Murphy & Wadlington, of Belzoni, for appellee.

The case of Daniel v. Livingstone, 150 So. 662, amply supports the verdict and the correctness of the instructions given plaintiff.

From the facts discussed it is manifest the bus was being negligently driven in such a manner around the curve in violation of section 5571, that the driver could not see the car of Senator North either standing, or being backed to assist the car in the ditch, or he negligently failed to see it, until he was so close that he had to turn the bus into the ditch to prevent a collision, and probable death of his passengers. He chose to take the ditch, but the necessity for the choice was brought about by his carelessness.

Section 5569, Code of 1930.

If one view of defendant's testimony is taken it is without dispute that section 5571 was violated, and if the other is taken, section 5569 was violated.

Rhodes v. Fullilove, 161 Miss. 41; Snyder v. Campbell, 145 Miss. 287, 110 So. 678, 49 A.L.R. 1402; Frazier v. Hull, 157 Miss. 303, 127 So. 775.

The plaintiff was a passenger in the bus and the relation of carrier existed. The carrier owed to the plaintiff the highest degree of care and diligence for plaintiff's safety.

L. & N. R. R. v. Compiretto, 137 Miss. 711; 42 C. J. 1054; 10 C. J. 867; Johnston v. Coey, 21 L.R.A. (N.S.) 811; Gulf & Ship Island R. R. v. Carlson, 137 Miss. 613.

The verdict is not excessive.

Public Service Com. v. Watts, 168 Miss. 235.

Argued orally by Louis J. Wise and James W. Wrape, for appellant, and J. F. Barbour, for appellee.

OPINION

Anderson, J.

Appellee brought this action in the circuit court of Yazoo county against appellant to recover damages for injuries received by him while a passenger on one of appellant's busses, alleged to have been caused by the bus leaving the road and running into a ditch on the left-hand side, brought about through the alleged negligence of the driver of the bus. There was a verdict and judgment for appellee in the sum of five thousand dollars, from which judgment appellant prosecutes this appeal.

Appellee was going on sixty-seven years of age at the time of his injury. He testified that he was strong and hearty, and made his living by manual labor. He is a farmer in Humphries county and has been for a good many years. He had a wife and three sons at home and married children away. He was in Missouri, near Sikeston, on a temporary job, manual labor, and had finished the work. On January 3, 1935, he made the trip from Sikeston to Silver City, in Humphries county, on one of appellant's passenger busses. He lived only about four miles from Silver City. There were something like twelve or fifteen passengers on the bus. As the bus was approaching Silver City at about nine o'clock at night, going south and about half a mile north of that place, it ran into a ditch on the left-hand side of the road and struck a wire fence and a post to which the wire was attached; both the front and back left-hand wheels of the bus were in the ditch. The road is a first class gravel road thirty feet wide with gravel shoulders.

There is a radical conflict between much of the material evidence for appellant and appellee as to whether the ditching of the bus was caused by the negligence of the driver. It is shown by the evidence, however, without conflict that it resulted from an effort on the part of the driver to avoid striking the car of Mr. North, which was on the right-hand side of the road. North and his companion on the trip were driving south in the former's car; they found a car ditched on the right hand side of the road; they passed it for a short distance, then decided to back up to it with their car and pull it out of the ditch; they were so engaged when the bus appeared on the scene. This place in the road is situated in an S curve; some of the witnesses testified that it was a sharp S curve, and some that it was a gradual S curve. When the bus swerved to the left, North's car had about reached the ditched car. According to the testimony for appellee, the lights on North's car, both front and rear, were burning brightly. According to the evidence for appellant, the front lights were burning, but the rear light was not. The evidence for appellee, if true, showed the speed of the bus when it appeared on the scene to have been from forty-five to fifty miles an hour; that for appellant placed it at from twenty to thirty miles an hour.

North appears to have been in a better position to observe both the speed of the bus and just how and what caused it to swerve to the left and go in the ditch. He testified that the bus was going at from forty-five to fifty miles an hour when it swerved to the left to avoid hitting his car that the driver of the bus, with proper care, could have seen both the rear and front lights of his car in ample time to have avoided the swerve to the left; that from his car to where the bus went in the ditch was about thirty-five yards, and that after the left-hand wheels of the bus went in the ditch it ran from thirty-five to forty yards before it struck the fence and stopped; that his car was on the extreme right-hand side of the road close to the ditched car. If that was true, it is apparent at once that there were twenty odd feet of clear road left for the bus to pass over, and therefore a sharp swerve to the left was wholly unnecessary....