Peel v. Gulf Transport Co.

• Decision Date: 19 April 1965
• Docket Number: No. 43440,43440
• Citation: 174 So.2d 377,252 Miss. 797
• Parties: T. C. PEEL et al. v. GULF TRANSPORT COMPANY.
• Court: Mississippi Supreme Court

Page 377

174 So.2d 377

252 Miss. 797

T. C. PEEL et al. v. GULF TRANSPORT COMPANY.

No. 43440.

Supreme Court of Mississippi.

April 19, 1965.

Huff, Williams, Gunn, Eppes & Crenshaw, Meridian, for appellant.

Snow, Covington, Shows & Watts, Meridian, for appellee.

RODGERS, Justice:

This is a personal injury suit for a death claim, growing out of an automobile accident in which a bus collided with a truck while attempting to pass. The jury returned a verdict in favor of the defendant, appellee here, in the Circuit Court of Lauderdale County, Mississippi, and from an adverse order and judgment overruling appellants' motion for a new trial, the cause has been appealed to this Court. A narrative of the facts here involved are as follows: At or about four o'clock on the morning of December 24, 1963, Harold F. Peel, a young man twenty-one years of age got out of bed at his father's home and went into the yard and started the motor of a 1962 Ford pickup truck parked near his room. He then returned to his room, leaving the motor running, while he finished dressing. He drove to his uncle's restaurant in Quitman, Mississippi, where he was working during the Christmas holidays. After opening the restaurant and performing certain chores, he drove north on Highway 45 two miles to get Olivia Owens, a colored employee. She got in the truck and accompanied Harold Peel as he drove south on Highway 45 to Quitman. He intended to go by the home of Betty Jean Moneghan, another employee of the restaurant, who lived on the east side of Highway 45 on Poplar Street. Highway 45 runs north and south through Quitman, Mississippi. A short distance north of the city limits, the highway goes over a hill and gradually goes downgrade south into the city. The area adjacent to the highway is closely built up with residences, stores and a school. Mr. Peel and Olivia Owens proceeded south along Highway 45 in the pickup truck on the right-hand side of the road until they had reached a point near Owens Body Shop, inside of the corporate limits of Quitman, Mississippi, and within a municipal speed zone of thirty miles per hour. It was then about 5:15 o'clock. The highway at this point is asphalt, 'blacktop.' The 'blacktop' or paved part of the highway is twenty feet wide. The weather was cold and the previous night had been extremely cold. It had snowed but the highway was clear of snow at that time. Harold Peel cleaned the windshield of snow and ice on his side of the truck, but Olivia Owens testified that she could not see 'too good' from her side of the windshield and that Mr. Peel had wiped the inside of the windshield several times as they proceeded south on Highway 45. She testified that she saw the lights of the bus as it came up behind the truck at a time when the truck was in its proper traffic lane. She felt a jar as the bus struck the truck and immediately she saw a 'great light.' The truck was propelled southward and it caught afire and came to rest in the ditch on the east side of the highway. Harold Peel burned to death, and although Olivia Owens was rescued, she was severely burned.

The bus belonged to the Gulf Transport Company and was being driven by Woodrow Cox. Just prior to the accident, the bus had been used to transport the Mississippi State University Band to the Liberty Bowl game at Philadelphia, Pennsylvania. Herbert J. Mooney had driven the bus back to Birmingham, Alabama, and Woodrow Cox drove to the college and thence south to Quitman, Mississippi. Mr. Mooney rode with Mr. Cox in order to get to his home in Mobile, Alabama, and was on the bus at the time of the collision. Mr. Cox drove south within the corporate limits at a speed testified to be '35 miles per hour or less.' Both bus drivers testified that they attempted to pass the truck being driven by Harold Peel on his left, or in the east lane, and just as they were in the process of passing, the truck turned left into the path of the bus. Mr. Mooney called out 'look out Bubba', just as the truck collided with the bus and the truck caught afire. The bus driver immediately put on his brakes and brought the bus to a stop, with all of its wheels off the paved portion of the road except the right back wheel. The testimony shows that from the place where the glass from the headlights of the bus was found, to the truck, was a distance of 144 feet; that south from the glass of the headlights to a scraped hole on the east part of the center line, there was a distance of 21 feet. The skid marks of the bus on the highway, beginning 8 feet and 6 inches from the hole in the pavement to the back wheels of the bus, were 58 feet long. The truck was catapulted 44 feet beyond the bus and thrown upside down. The back wheels of the truck were torn from the truck and thrown to the right on the highway. The left back spring attached to the wheels had asphalt on it.

Many witnesses were produced on both sides. The issues drawn were whether or not the bus driver was violating the speed limit or was otherwise negligent in attempting to pass the truck being driven by Mr. Peel; or whether or not Mr. Peel suddenly turned to the left in the middle of a block because he could not see the road through the windshield, on the theory that it was fogged or iced over. A great many pictures were made exhibits in the record which give a complete pictorial view of the area where the accident occurred, including the vehicles at the place where they came to rest. The back bumper of the truck was introduced and exhibited to the jury. From an examination of the pictures, the accident obviously occurred at or near the center line of the highway. Pictures showing a hole, or scraped place, in the west side of the center line of the highway, were introduced and offered to show that the left spring of the truck was broken and had asphalt on it. The left back wheel of the truck was mashed and had paint from the bus on it. The bus skid marks started close to the center line of the highway. The bus driver testified that he pulled to the left and put on his brakes as soon as he saw that there was going to be an accident. The pictures of the skid marks show that the bus was still near the center line when the brakes were applied. The physical facts and the evidence as a whole are very close.

The evidence offered by the plaintiffs, appellants here, in the trial court presented a claim that the bus driver for defendant, Gulf Transport Company, was driving at a speed in excess of that permitted in city limits. The declaration charged, among other things, that it was the duty of the defendant's bus driver to give warning of his approach and attempt to pass; that it was his duty to keep his bus under control, and travel at a moderate and reasonable rate of speed, under the then existing circumstances; and to refrain from overtaking and passing the truck until it could be done without interfering with the safe operation of Mr. Peel's pickup truck. Mr. Mooney, who was in the bus at the time of the accident, testified that it was being driven at '35 miles per hour or less'; and later he testified it was traveling from '30 to 35 miles per hour.' The bus driver said he was driving '30 to 35 miles or slower', and later, in answer to the question: 'So you think it was 35 to 40?', he answered: 'Or slower.'

The testimony shows that the bus had air brakes, and after the brakes were applied, all wheels laid down dual skid marks a distance of 58 feet long to the back of the back wheels of the 35 foot bus. Thus, it was claimed that the bus with air brakes could not stop in a distance of 93 feet, traveling at 35 miles per hour.

The bus driver testified that as he was approaching the pickup truck from the rear, he could tell the rear glass was iced over. When he proceeded by the truck, he could tell that the left glass was also iced over. In short, it is claimed the bus driver knew the condition of the weather and saw that the back glass of the truck was iced over so that the truck driver's vision was apparently obscured; nevertheless, the bus driver proceeded to pass the truck within the city limits of Quitman at a speed alleged to be greater than is permitted by law, and, obviously at such a speed, he was not able to stop in less than 93 feet.

Defendant bus company, appellee here, was sued by appellants under the wrongful death statute for negligence in causing the death of Harold F. Peel. It defendant upon the grounds that it did nothing to cause the accident, that the accident was caused wholly and solely by Mr. Peel's turning the truck abruptly in front of and striking appellee's bus.

I

This case has been of considerable concern to members of this Court who heard the arguments of counsel, not only because of the importance to the parties involved but because of the close factual circumstances shown by the evidence to have existed at the time of the collision. This is particularly true in determining whether or not the proper issues were submitted to the jury on the question of contributory negligence and 'the sole proximate cause' of the collision.

Appellants argue that they should have been granted a peremptory instruction directing the jury to find for them because the testimony of the driver of appellee's bus admitted that he approached the pickup truck driven by Mr. Peel at an alleged unlawful rate of speed '30 to 35 miles per hour' within the city limits of Quitman and that he accelerated the speed of his bus in order to pass the pickup, at a time when he saw and was conscious of the fact that the rear glass of the pickup was iced over. In short, it is claimed appellee's agent was negligent in attempting to pass the pickup truck when he was conscious of the fact that Mr. Peel could not see the bus through the rear glass of the truck as it approached at a rate in excess of the municipal speed limits.

The testimony of Olivia Owens, a passenger in the pickup truck, is to the effect that she knew there was a...