Phillips v. Dow Chemical Co.

• Decision Date: 25 March 1963
• Docket Number: No. 42565,42565
• Parties: Mrs. Hazel PHILLIPS et al. v. The DOW CHEMICAL COMPANY et al.
• Court: Mississippi Supreme Court

Page 199

151 So.2d 199

247 Miss. 293

Mrs. Hazel PHILLIPS et al. v. The DOW CHEMICAL COMPANY et al.

No. 42565.

Supreme Court of Mississippi.

March 25, 1963.

Prewitt & Bullard, Vicksburg, William F. Riley, Natchez, for appellant.

Brandon, Brandon, Hornsby & Handy, Natchez, Simrall, Aultman & Pope, Dudley W. Conner, Hattiesburg, for appellee.

GILLESPIE, Justice.

On March 11, 1960, David Phillips, Vernon C. Bardwell and James C. Carlisle were on the way to their homes after working during the week at a shipyard in Pascagoula, as was their custom. They were riding in a Chevrolet owned by Carlisle. When they were on Highway 42 going westerly between Sumrall and Prentiss, it was after dark and they were traveling at a high rate of speed. A Farmall tractor was also moving westerly along the highway, being operated by a young colored boy with another small boy riding on the axle. The right front of the Chevrolet struck the tractor and sheared off the left tractor wheel. The Chevrolet then veered to its left across the highway and struck the left front of a large truck owned by, and operated by Robert K. Shoemake for, The Dow Chemical Company. At the time of the collision the Dow truck had slowed to fifteen or twenty miles per hour and was about half way off the pavement to its right and as close to the ditch as it could safely go. The left front wheel of the Dow truck was sheared off and the truck's braking system was destroyed by the impact. The truck turned left out of control and traveled about seventy-five feet and ran into a railroad embankment on the north side of the highway. The Chevrolet veered to the right after striking the truck, traveled more than one hundred feet, and came to rest north of the highway. All three occupants of the Chevrolet were killed. The next of kin of Phillips filed this suit for his wrongful death against the Dow Chemical Company and its driver, Robert K. Shoemake, and William T. Ferrell, administrator of the estate of James C. Carlisle. After a trial on the merits, the jury returned a verdict for all defendants. Plaintiffs appeal.

Appellants contend that the verdict was contrary to the overwhelming weight of the evidence, was not the product of reason but of bias, passion and prejudice, and the judgment based thereon must be reversed. In resolving this question we are mindful of our duty to set aside a verdict whenever we can confidently say that the jury did not respond to reason and therefore acted from motives of bias, passion and prejudice. In so doing, the rule is that we must view the evidence in the light most favorable to the party in whose favor the jury decided. Moreover, we are not permitted to consider isolated parts of the evidence apart from the whole, and we must assume that the jury drew every permissible inference in favor of the successful party. We state the facts in view of these rules.

Shoemake was driving a specially equipped International truck which weighed about 22,500 pounds. Jack Williams, another employee of Dow, was riding in the truck. Shoemake and Williams stopped for coffee at Prentiss and then started to Hattiesburg along Highway 42 in an easterly direction. As Shoemake came over the crest of a grade, his speed was about 45 miles per hour. About this time Shoemake noticed two small lights in the north or westbound lane. He could not determine what the lights were but let off on his accelerator and the engine of his truck started slowing the vehicle. At that time Shoemake did not see any other vehicle approaching from the east. The two small lights in the westbound lane were in fact a Farmall tractor. When Shoemake was about 500 feet west of the tractor he saw the lights of an automobile coming from the east at a speed he estimated to be 70 miles per hour. When the westbound automobile was about 150 feet behind the tractor, Shoemake saw its lights dip but he could not tell whether its speed diminished. Shoemake then turned to his right as far as he could without risking turning over into the ditch and began braking his truck lightly. He had reduced the speed of the truck to fifteen or twenty miles an hour when the westbound automobile struck the tractor, then veered to its left and struck the Dow truck, shearing off the truck's left front wheel. Because the brake system was destroyed in the collision, Shoemake had no control over the truck and it rolled about seventy-five feet to the left and ran into the railroad embankment north of the highway. The Dow truck was about half way off the pavement on its right side at the time of the collision. The shoulder on the southerly side of the highway is about five or six feet wide. All the distances and the speed of the westbound automobile were mere estimates and Shoemake did not contend they were anything more than rough estimates. There was ample room for the Chevrolet to pass between the tractor and the truck without colliding with either.

After the Chevrolet automobile came to rest on the north side of the highway west of the point of impact, Bardwell was either dead or dying and lying near the right rear wheel with his head toward the east. The body of James C. Carlisle was found near the right front wheel of the automobile. David Phillips was still alive and was sitting on the floor board with his feet near the right front door, with his armpit and shoulder resting on the seat under the steering wheel. Phillips was fatally injured but conscious. He requested help and made several statements, including 'Somebody hit me.' The highway patrolman removed the baggage from the Chevrolet and took it to Prentiss. The next day, after the Chevrolet had been moved to Prentiss, some of Phillips' belongings, including his glasses, were found on the floor of the Chevrolet between the front and rear seats.

The three men who were killed worked at Pascagoula and came home every weekend. They alternated in the use of vehicles. On and before the day of the fatal accident, they had been riding in the Carlisle automobile, and the other two paid Carlisle $5.00 per week to defray expenses. On the day of the fatal accident, Carlisle was seen leaving his rooming house in Pascagoula. He was alone and driving his Chevrolet.

We are of the opinion that the evidence fully justified the jury's verdict in favor of Dow and Shoemake. The only thing Shoemake could have done to avoid the accident other than what he did do was to stop at some undetermined distance west of the place where the collision occurred. Appellants argue that he should have foreseen the consequences of not stopping, and the proof showed that the truck could physically have been stopped before reaching the point of impact. But this argument is predicated on hindsight. Shoemake was not an insurer. The jury was entitled to find that Shoemake did not create the emergency, and that he acted at all times as a reasonably prudent driver under the circumstances. Furthermore, a sudden full application of the brakes on the truck could have caused the truck to skid out of control. The truck was pulled as far to the right as it could safely go. The jury was justified in finding that Shoemake acted reasonably in braking lightly instead of locking his brakes. We cannot say the verdict was contrary to the overwhelming weight of the evidence, or that the jury did not respond to reason, or that the verdict was the result of bias, passion or prejudice.

As to the verdict in favor of the administrator of Carlisle's estate, the jury necessarily found that Phillips was driving Carlisle's Chevrolet. This issue was made up by the pleadings. No one saw who was driving the Chevrolet. It belonged to Carlisle. Earlier that day, Carlisle was seen driving alone in the Chevrolet at Pascagoula. Some of Phillips' belongings, including his glasses, were found behind the front seat. Phillips had no serious chest wounds. That was the proof on behalf of appellants tending to show Carlisle was driving. On the other hand, Phillips was found on the floor board with his armpit and shoulder resting on the seat under the steering wheel with his feet to the right. The entire left side of the car was destroyed and the right doors were open....