Pickwick Greyhound Lines, Inc. v. Silver

• Decision Date: 16 December 1929
• Docket Number: 28214
• Citation: 125 So. 340,155 Miss. 765
• Court: Mississippi Supreme Court
• Parties: PICKWICK GREYHOUND LINES, INC., v. SILVER

125 So. 340

155 Miss. 765

PICKWICK GREYHOUND LINES, INC., v. SILVER

No. 28214

Supreme Court of Mississippi

December 16, 1929

Division A

1 CARRIERS. Instruction permitting jury to convict bus driver of negligence, without reference to condition of road, held not erroneous under evidence.

Instruction in action by passenger against bus company, permitting jury to convict driver of bus of negligence without reference to condition of road, held not erroneous, in view of evidence warranting conclusion that driver was negligent and that bus would have skidded and turned over because of speed and application of brakes although road had been in good condition.

2. DAMAGES. Whether injury to passenger in bus was permanent held for jury.

Question as to whether injury received by passenger in bus was permanent held for determination of jury, in view of evidence relative thereto.

3. DAMAGES. Proper allegation in declaration is necessary to authorize recovery of future medical expenses as damages.

In order that medical expenses which will be incurred in the future may be recovered as damages, a proper allegation relative thereto must be included in the declaration.

4. CARRIERS. Whether operating bus around curve at speed of twenty-five miles per hour was negligence held for jury.

Whether operating bus at a speed of twenty-five miles per hour while proceeding around curve constituted negligence, in view of condition of road, held for jury under evidence in respect thereto.

5 TRIAL. Instruction submitting negligence vel non of bus driver as to speed of bus under circumstances held not erroneous because using word "careless" instead of "negligence."

Instruction submitting negligence vel non of driver of bus relative to speed of bus under circumstances by language as follows, "If you believe from the evidence it was a careless way to handle the bus," held not erroneous, in that carelessness and negligence are so nearly synonymous that the use of one for the other was not harmful, particularly in view of other instructions.

6. CARRIERS. Evidence that bus was practically demolished and that another passenger was badly mangled was admissible in passenger's action to recover for injuries.

In action by passenger of bus to recover for injuries received when bus overturned, evidence to effect that bus was practically demolished, seats broken loose and thrown to the front, and that another passenger was badly mangled, was admissible as tending to show speed at which bus was running when it skidded and turned over.

7. TRIAL. Argument, in passenger's action for injuries relative to fraud in transferring ownership of bus company and running heavy busses on road, held erroneous as without support in evidence.

In action to recover for injuries to passenger in bus at time bus turned over, concluding argument to jury relative to fraud of bus company in transferring ownership without authority from or knowledge of railroad commission, and as to putting heavy busses on the road and running them in center of road and gathering all the passengers they could get money out of, held erroneous as without support in evidence and having no relation to liability for injuries.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Holmes county HON. S. F. DAVIS, Judge.

Action by Abram Silver against the Pickwick Greyhound Lines, Incorporated. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The instruction directed to be reported was as follows:

"The court instructs you that if you believe from the evidence, that the road at and closely approaching the curve where the bus turned over, at the time and for several days before, had mud thrown up on each side, so that the shoulder on west side, or inside of the curve was higher than opposite side, and that mud had covered the gravel portion of the road at that point, which because of rain made the road slick or slippery, or that there was danger of skidding or slipping by cars in going around the curve and if you further believe from the evidence that the driver of the bus saw for a distance for approximately one hundred yards that the condition of the road there had been materially changed from its condition when he last drove the bus over it, by the work being done on it by the county authorities, if you further believe from the evidence that what he then saw of the road was sufficient to make it reasonably appear that its condition and the safety of the passengers required caution and care, but he did not know until he got into the curve and too late to prevent the overturning of the bus, the extent of the unsafe condition, if you further believe from the evidence that he then ran the bus into and around the curve and slick road at twenty-five miles an hour, you find for the plaintiff, if you believe from the evidence it was a careless way to handle the bus, under all the facts and circumstances in evidence and directly and materially contributed to plaintiff's injury, and this is your duty regardless of every other fact and circumstance in the evidence."

Reversed and remanded.

Wells, Jones, Wells & Lipscomb and J. M. Stevens, all of Jackson, and Ruff & Johnson, of Lexington, for appellant.

The injury inflicted on the plaintiff was the result of an unavoidable accident for which there is no liability.

177 N.W. 909, 12 A. L. T. 655; Wing v. London General Omnibus Co., 2 K. B. 652, 3 B. R. C. 79.

In the English case, Gibbons v. Vanguard Motor Bus Company, 25 Times L. R. 14, 72 J. P. 505, the court held that it was a well-known fact that motor busses were liable to skid so it was impossible to control them. That is exactly the principle for which appellant is contending here.

Williams v. Holbrook, 216 Mass. 239; Washburn v. R. F. Owens Co., 252 Mass. 47, 147 N.E. 564; Simpson v. Jones, 284 Pa. 596, 131 A. 541.

The court erred in granting instruction No. 1 for the plaintiff.

It was error to acquaint the jurors with the fact that the defendant was covered by liability insurance.

Herrin et al. v. Daly, 80 Miss. 340, 31 So. 790, 92 Am. St. Rep. 605; Yazoo City v. Loggins, 110 So. 833; Standridge v. Martin, 86 So. 266; Stewart v. Newby, 266 F. 287.

The verdict of the jury was grossly excessive.

Y. & M. V. R. R. Co. v. Kelly, 98 Miss. 367, 53 So. 779; So. R. R. Co. of Miss. v. Turner, 49 So. 113; Central of Ga. Ry. Co. v. Robertson, 91 So. 470; Payne v. McNeely, 123 Miss. 248, 85 So. 197; Y. & M. V. R. R. Co. v. Cobb, 48 So. 522; Y. & M. V. R. R. Co. v. Mothershed, 85 So. 835; City of Greenwood v. Pentecost, 148 Miss. 60, 114 So. 257; Knight v. V. S. & P. R. R. Co., 76 So. 799; Carver v. City of Jackson, 82 Miss. 583.

The argument of counsel for plaintiff was so intemperate and prejudicial as to constitute reversible error.

Barbour & Henry, of Yazoo City, and Boothe & Pepper, of Lexington, for appellee.

A carrier of passengers is required to exercise the highest degree of care and diligence for the safety of the passengers.

Louisville & Nashville R. R. Co. v. Compiretto, 136 Miss. 766.

Under the statute a prima-facie case was made by showing the overturning of the bus in the curve.

Flint v. Fondren, 122 Miss. 248.

As to acquainting the jury of insurance, the appellant is plainly guilty of an effort to magnify a harmless and insignificant incident in the trial of the case into a serious error. There is absolutely nothing in the contention, because, as a matter of fact, the record shows that the jury never knew that insurance was carried by the defendant.

As to the argument of counsel, this court has held many times that unless it is something extraordinary, the sustaining of an objection by the judge and the admonishment to the jury to disregard the argument, will cure any error that might have occurred.

The argument of counsel was literally correct and within the record.

The verdict of the jury was not excessive.

Planters Manufacturing Co. v. Shell, 120 So. 919; Quinn v. Chicago R. R. Co., 202 N.W. 275; Lorrilard v. Clay, 104 S.E. 384; Hurst v. Chicago R. R. Co., 219 S.W. 566; A. & V. R. R. Co. v. McGee, 117 Miss. 370; Y. & M. V. R. R. Co. v. Cokerham, 134 Miss. 887; I. C. R. R. Co. v. Williams, 144 Miss. 805; Y. & M. V. R. R. Co. v. Dees, 127 Miss. 431; N. O. & N.E. R. R. Co. v. Jackson, 110 So. 586; Easterling Lumber Co. v. Pierce, 106 Miss. 678; Galveston H. & S. Co. v. Ford, 275 S.W. 463; Brock v. Chicago, etc., R. R. Co., 305 Mo. 502; I. C. R. R. Co. v. Johnston, 205 Ala. 1; Elder v. Chicago, etc., R. R. Co., 163 Minn. 457; Galveston, etc., Co. v. Butts (Tex.), 209 S.W. 419; Wright v. Omaha, etc., R. R., 101 Neb. 292.

Argued orally by J. M. Stevens, and H. S. Lipscomb, for appellant, and by J. F. Barbour, for appellee.

OPINION

Smith, C. J.

The appellee sued the appellant for a personal injury alleged to have been received by him because of the negligence of the appellant's servant, and recovered a verdict and judgment for fifteen thousand dollars.

Appellant is a corporation engaged in operating a passenger motorbus line over the public roads, and, on the occasion in question appellee was a passenger on one of its busses for transport from Jackson, Mississippi, northward to Memphis, Tennessee. The bus in which appellee was traveling was overturned near the village of Gwin, in Holmes county, thereby causing his injury. The road curves at the place where the accident occurred, and the bus skidded and overturned just as it entered the curve. The evidence for the appellee discloses that the curve was sharp, but does not disclose the angle of the curve; while the evidence for the appellant is to the effect that it was not sharp, that its departure from a straight line is about forty-nine degrees and thirty minutes. This...