Porter v. Nesmith

• Decision Date: 14 February 1921
• Docket Number: 21546
• Citation: 124 Miss. 517,87 So. 5
• Court: Mississippi Supreme Court
• Parties: PORTER ET UX. v. NESMITH ET AL

87 So. 5

124 Miss. 517

PORTER ET UX. v. NESMITH ET AL

No. 21546

Supreme Court of Mississippi

February 14, 1921

1 TRIALS. Verdict should not be directed when evidence if believed warrants judgment for plaintiff.

A jury should not be directed to return a verdict for the defendant when there is evidence which, if believed by them to be true would warrant a verdict for the plaintiff.

2 HIGHWAYS. Driver of automobile must keep lookout for other travelers.

The driver of an automobile should keep a lookout for other travelers on the road, and his failure so to do resulting in injury to another traveler is negligence.

HON. D M. MILLER, Judge.

APPEAL from circuit court of Copiah county, HON. D. M. MILLER, Judge.

Action by D. E. Porter and wife against B. B. Nesmith and others. Judgment for defendants on a directed verdict, and plaintiffs appeal. Reversed and remanded.

Reversed and remanded.

R. H. & B. H. Miller, Fulton, Thompson and R. H. & J. H. Thompson, for appellants.

Where the defendants by their negligence produced a state of affairs from which an injury results they are liable therefor and that is exactly this case. The old English Squib case is applicable and illustrative. There the squib was thrown at one man, who knocked it off in the direction of another, who in turn knocked it in the direction of a third person, the plaintiff, the squib striking plaintiff in the eye and seriously damaging him. He sued the man who first threw the squib and recovered. Scott v. Shepherd, 2 Blackstone Reports, 892, 1 Smith's Leading Cases (9 Am. Ed.) 737.

Our statute, Hemingway's Code, p. 5775, provides that: "No person shall operate a motor vehicle on a public highway or street, avenue or ally of any city, town or village in this state at greater rate of speed than is reasonable and proper, having due regard to the traffic and use of the highway, or so as to endanger the life or limb of any person or the safety of any property. The concluding parts of the section do not affect the sentences above quoted.

It was, we submit, undoubtedly a question of fact, that should have been submitted to the jury in this case, whether defendants were violating this statute when their motor truck struck and killed plaintiff's son. We submit that defendants violated the statute and were guilty of gross negligence when the driver of the truck, after crossing a street with his eyes upon objects behind him, entered upon the narrow passageway between the parks without giving warning. And if Russell did so at any rate of speed about which normal minds might differ as to whether it was reasonable or unreasonable, proper or improper under the circumstances and facts of this case, then, at least, a question of fact was presented which should have been submitted to the jury. It seems to us that to enter the narrow passage at any speed would be unreasonable and improper unless it was so slow as to enable the driver to have absolute control of the vehicle and prevent the striking of persons coming into the driveway from the path across the corner of the north park. This too was a question for the jury.

Again, our statute, Hemingway's Code, p. 5777, provides, that auto trucks "upon approaching a crossing of intersecting highways" including streets, must do so "at a speed not greater than is reasonable and proper, having due regard to the traffic then on such highway and the safety of the public." The narrow driveway between the parks intersected the street called West Railroad avenue and when defendants truck approached the intersection did it do so at a rate of speed greater than was reasonable and proper having due regard to the traffic and the safety of the public? It is no answer, certainly not a conclusive one, to say the truck was moving at a speed not exceeding six miles an hour. The question is, did the traffic and the safety of the public require a lesser speed at the time than that of the truck which took human life? This, we submit, was a question for the jury and not for the court to decide.

In Ulmer v. Pistole, 76 So. 522, this court recently decided that it is negligent for an automobile driver to fail to look both ways at a street intersection. The junction between the passageway between the parks and West Railroad avenue was an intersection, and the junction between the path across north park and said passageway was also an intersection of much traveled roads. The eloquent words used on several occasions by this court, are especially applicable to the case at bar.

So many questions are intergregated, usually into the solution of the question of negligence; it is so necessary to carefully examine all the circumstances making up the situation in each case, that it must be a rare case of negligence which the court should take from the jury. Stevens v. Yazoo, etc., R. Co., 81 Miss. 195; Yazoo, etc., R. Co. v. Humphreys, 83 Miss. 721; Bell v. Southern, etc., R. Co., 87 Miss. 234; Laurel v. Mobile, etc., R. Co., 87 Miss. 675; Allen v. Yazoo, etc., R. Co., 88 Miss. 25.

Myron S. McNeil, for appellee.

Instead of the case of Setoo v. Shepherd, 2 Blackstone Reports, 892, being an authority for the appellants in this case, we insist that it is a case in direct point for the appellees. Raleigh Edgar Porter drove his bicycle along this obscure path and entered suddenly upon the street. The appellee, Russell, upon discovering the presence of Raleigh Edgar Porter immediately turned his vehicle to the right and away from the boy. Now suppose that either of the two men standing on the right had been killed or damaged by this vehicle driven by the appellee, Russell, who would have been liable, and to whom would the blame have been attributable? No case is more illustrative than the famous squib case referred to by counsel. "Where one threw the squib, who knocked it off in the direction of another, etc." Who threw the squib in this case? The answer is manifest, the unfortunate little Raleigh Edgar Porter.

The next point discussed by counsel for appellants is presented on page 6 of their brief. They state: "In the case at bar the death of plaintiff's son was a direct and proximate result of the driving of the truck without keeping a lookout across a street, intending to enter the narrow driveway between the parks, the driver at the time not looking ahead of him, but having his eyes upon the rear of the truck and the persons seeking to get up on it. In so doing he went too far to the south and thereby endangered a man, and in efforts to prevent injury to him, the truck was violently speeded across to the left side of the driveway and the boy was killed."

We contend that, even if it was true that Russell was driving his truck on the left of the middle of the road,...