Phillips v. Delta Motor Lines, Inc.

• Decision Date: 19 January 1959
• Docket Number: No. 40922,40922
• Citation: 235 Miss. 1,108 So.2d 409
• Parties: Mrs. Mary Jane PHILLIPS v. DELTA MOTOR LINES, Inc., and K. C. Foster.
• Court: Mississippi Supreme Court

Page 409

108 So.2d 409

235 Miss. 1

Mrs. Mary Jane PHILLIPS v. DELTA MOTOR LINES, Inc., and K. C. Foster.

No. 40922.

Supreme Court of Mississippi.

Jan. 19, 1959.

Lee V. Prisock, Jackson, for appellant.

Young, Daniel & Coker, Jackson, for appellees.

KYLE, Justice.

This case is before us on appeal by Mrs. Mary Jane Phillips, plaintiff in the court below, from a judgment rendered by the Circuit Court of Hinds County in favor of the Delta Motor Lines, Inc., and K. C. Foster, defendants in the court below, in an action for damages for personal injuries alleged to have been sustained by the appellant, when an automobile, which was owned by Mrs. Berdie Mae Stephens, and in which the appellant was riding as a guest, was struck by a truck owned by the appellee, Delta Motor Lines, Inc., and being driven by the appellee, K. C. Foster.

The accident occurred on May 15, 1956, at approximately 6:45 a. m. at the intersection of Broadmoor Drive and North State Street in the City of Jackson. The automobile in which the appellant was riding was proceeding northwardly along North State Street and had been brought to a stop at a red light at the intersection of Broadmoor Drive. The truck driven by K. C. Foster was proceeding northwardly on North State Street some distance behind the appellant's car; and as the truck approached the intersection and was about 150 feet to the rear of the automobile the driver applied his air brakes, which held for a 'bit' and then failed completely. The driver of the truck cut to the left, in an effort to avoid striking the car, but the front bumper of the truck struck the left back fender of the automobile, causing minor damage to the automobile. The truck rolled about three feet farther and came to a stop. The appellant, who was riding on the left side of the back seat of the automobile at the time of the accident, proceeded to the plant, where she was employed, and made no complaint of any injury to the foreman or the registered nurse in charge of the first aid room at the plant. On September 18, 1956, the appellant gave a statement concerning the accident to one of the appellees' attorneys and a court reporter, in which she stated that she had not been hurt in the accident. She did not consult a doctor until November, 1956.

The appellant filed her declaration on January 3, 1957. The declaration contained two counts. The first count alleged acts of negligence on the part of the appellees as follows: That the appellee, K. C. Foster, was operating his vehicle at a reckless rate of speed; that he failed to keep a proper lookout for other vehicles; that he failed to keep his truck under proper control; and that he failed to sound his horn or give any warning of the approach of his vehicle prior to the collision. In the second count the appellant alleged that the truck was not equipped with brakes adequate to control the movements of the truck, as a required by Section 8249, Mississippi Code of 1942, Recompiled. In their answer the appellees denied that the driver of the truck was guilty of negligence in the operation of the truck, as alleged in the plaintiff's declaration, and averred that the accident arose out of an emergency created by an unexpected failure of the truck's braking system.

The case was submitted to a jury under instructions granted by the court, and the jury returned a verdict for the defendants.

The appellant assigns the following errors as grounds for reversal of the judgment of the lower court: (1) That the court erred in refusing to grant the peremptory instructions requested by the appellant; (2) that the verdict of the jury was contrary to the overwhelming weight of the testimony; and (3) that the court erred in refusing to grant two instructions requested by the appellant relating to the alleged failure of the driver of the truck to operate his vehicle at a reasonable rate of speed and to have the truck under proper control, and the appellees' failure to have the truck equipped with two independent and effective brakes and a suitable horn or signal device.

In view of the nature of the assignments of error, it is necessary that we give a brief summary of the testimony.

Dr. Thomas C. Turner testified as the first witness for the plaintiff. He stated that Mrs. Mary Jane Phillips came to his office on December 3, 1956, complaining of pain in her neck and right shoulder. He stated that 'she related her symptoms to an automobile accident' which occurred on May 15, 1956. The doctor stated that he examined Mrs. Phillips, took X-rays and found signs, subjective of old neck strain, mild hypertrophic arthritis of the spine. There was a mild limitation in the forward bending of the neck, and a slightly more than mild limitation in bending the neck backward. The doctor found no evidence of the impairment of the nerves. Her symptoms consisted of limitations of movement of the neck. The doctor's diagnosis was that she probably had a chronic neck sprain, superimposed in a mild degree of hypertrophic arthritis in the neck, and the doctor recommended that she make use of a traction 'to pull on the muscles and ligaments and allow her muscles to relax, and that she use a Thomas collar. Mrs. Phillips continued to have a moderate amount of pain, but it was apparently not enough to prevent her from carrying on her regular activities. The doctor stated that, when a patient complains of pain, the doctor does not have much to go on except what the patient tells him. The doctor was asked a hypothetical question based upon Mrs. Phillips' answers to questions propounded to her by one of the defendants' attorneys on September 18, 1956, which will be referred to later; and in answer to that question, the doctor stated: 'Assuming that all of that is true and the patient stated that she had no pain other than what you have mentioned, it would be difficult to correlate the symptoms which she had when I saw her with what she made in her statement.'

The appellant, testifying in her own behalf, stated that she was employed at the Century Manufacturing Company, and had been working there about two and one-half years, and that she was riding as a passenger in Mrs. Berdie Mae Stephens' automobile on her way to the plant when the accident referred to in her declaration occurred. The car in which she was riding had stopped at the Broadmoor intersection on North State Street to wait for a light to change, and all of a sudden the car was hit from behind by a truck and was shoved forward five or six feet. The appellant stated that she was riding on the left side of the back seat of the car, and that she was jarred from her seat when the truck collided with the car. The jar caused her to suffer discomfort in her neck and right side, but she went on to work. She told her mother-in-law and her father-in-law about the accident when she got home, but she did not go to see a doctor at that time. Later on she suffered some nervousness and headaches, and finally went to see a doctor in November, 1956, and in December, 1956, she went to see Dr. Turner. Doctor Turner recommended that she get a traction halter for her neck, and she wore the traction halter from December until April. The appellant stated that R. A. Pritchard, one of the defendants' attorneys obtained a statement from her some time during the month of September, 1956. The attorney was not inquiring about her case at that time, but about a claim which had been made by Mrs. Berdie Mae Stephens. The appellant admitted on cross-examination that she did not tell the people at the plant where she worked that she had been injured. She also admitted that she had not visited the first aid room at the plant at any time between May 15 and November 15, 1956.

Mrs. Berdie Mae Stephens testified that she was working at the Century Manufacturing Company plant at the time the accident occurred. She carried five passengers with her to work, including Mrs. Mary Jane Phillips. Mrs. Phillips was riding on the left side of the back seat of the car. Mrs. Stephens stated that the Delta Lines truck hit the left back fender of her car, and that she was thrown forward against the steering wheel. The passengers on the back seat were thrown against the front seat. Another north bound vehicle had stopped on her right side at the intersection, and several vehicles were entering the intersection from Broadmoor and heading southwardly on State Street. Mrs. Stephens stated that the driver of the truck did not sound his horn as he approached the intersection, and she did not see the truck until after it hit her car. When the truck came to a stop, the front end of the truck was a little above her left rear wheel. Mrs. Georgia Phillips, Mary Jane Phillips' mother-in-law, testified that, when Mary Jane came home after her day's work, on May 15, 1956, she looked pale, and Mrs. Phillips rubbed her with liniment and applied a smoothing iron to her back. She and her husband finally persuaded Mary Jane to go to see a doctor, and Mary Jane wore a collar around her neck for a period of about two months. On cross-examination Mrs. Phillips admitted that Mary Jane had not missed a single day from her work since the accident occurred.

K. C. Foster, the driver of the truck, testified that he had been employed by the Delta Motor Lines since 1952. The truck that he was driving on May 15, 1956, was a Ford tractor and trailer unit of the same general type that he had driven for the City Coal & Lumber Company for a period of four years. Foster stated that he had driven the same Ford truck the day before the accident, and the braking system was working properly. When he went to work on the morning of May 15, 1956, he built up the air pressure used to operate the air brakes to 95 pounds, which was the proper amount. He made several stops before he got to the Broadmoor intersection. The last stop was at Northside Drive. His brakes were working properly at that time, and he had no warning when he...