Pounders v. Day

• Decision Date: 01 October 1928
• Docket Number: 27272
• Court: Mississippi Supreme Court
• Parties: POUNDERS v. DAY. [*]

118 So. 298

151 Miss. 436

POUNDERS v. DAY. ^[*]

No. 27272

Supreme Court of Mississippi

October 1, 1928

Division A

1 AUTOMOBILES. Evidence of automobile driver's reputation of being reckless driver held inadmissible in damage action.

In action for injuries resulting to plaintiff when struck by automobile on highway, evidence relative to defendant's reputation of being a reckless driver held properly excluded as being incompetent, the question at issue being whether or not driver was reckless on particular occasion.

2 DAMAGES. Four hundred dollars for fractured skull and hip held not inadequate under evidence authorizing diminishing damages proportionate to negligence attributable to injured person (Hemingway's Code 1927, section 516).

Four hundred dollars for injuries consisting of fractured skull and fracture of bone in hip held not inadequate in view of evidence establishing right to diminish damages proportionate to amount of negligence attributable to person injured in accordance with Hemingway's Code 1927, section 516 (Laws 1920, chapter 312), notwithstanding there was no request for instruction thereon.

3 AUTOMOBILES. Injury must have been proximately caused by violation of law regulating speed of motor vehicles in order to authorise recovery thereunder (Hemingway's Code 1927, section 6681).

In order to justify recovery for injuries under Hemingway's Code 1927, section 6681, regulating speed of motor vehicles under certain conditions, it is necessary that injury must have been proximately caused by violation of statute.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Monroe county, HON. C. P. LONG, Judge.

Action by Wirley Pounders, by next friend, against C. C. Day. From the judgment, plaintiff appeals. Affirmed.

Affirmed.

Young & Coleman, for appellant.

Leftwich & Tubb, for appellee.

OPINION

MCGOWEN, J.

Wirley Pounders, appellant, filed his declaration in the circuit court of Monroe county against C. C. Day, appellee, for personal injuries alleged to have been inflicted on him by appellee, C. C. Day, in that he ran into him, on the public highway, with an automobile being run at an excessive rate of speed while passing wagons drawn by mules on the highway, and, as a result of said injuries, that the plaintiff was damaged in the sum of ten thousand dollars.

There was a verdict and judgment for the plaintiff, appellant here, in the sum of four hundred dollars.

The facts that we deem necessary to state tend to show that Wirley Pounders was a boy about fourteen years of age; that he was traveling in a wagon with his brother-in-law going west toward Aberdeen; and that he stopped on the right-hand side of the road at the family mail box; that he was eating cake and in the act of taking the mail from the box on the south side of the road, when appellant, Day, traveling in the opposite direction going east toward Columbus, ran against the boy and knocked him some twelve or fifteen feet along the edge of the road further east from the mail box.

The plaintiff's evidence tended to show: That Day was driving at a high rate of speed, estimated from twenty to forty-five miles per hour, just immediately before the boy was struck by the automobile. There was a team and wagon traveling in the same direction of Pounders immediately in front, and a truck immediately behind him. As a result of the collision, the boy was unconscious for several hours; the back of his skull was fractured, and there was a fracture of the bone in his right hip, and his eyes were injured. The boy was immediately carried by Day to the Coleman Hospital in Aberdeen, where he remained for more than fifty days. For several days it was thought he would die, and the fractured hip was not treated until it was discovered that the skull fracture would not cause his death. Then for more than thirty days the boy's hip and leg were in a plaster paris cast, and, according to the doctor, there was a perfect setting and adjustment of the hip. That the boy did not limp afterwards, and was, apparently, well. That the concussion caused by the fracture of the skull affected his eyes causing him to see double. According to the boy, his eyes were crossed. The doctor testified that on a casual examination, a few days before the trial, which occurred about a year after the accident, the boy was apparently well. The boy testified that he could not work to do any good; that his leg hurt him every evening, and that he could scarcely see at all out of one eye, and that, before the injuries, he was strong and healthy, and had no physical ailment, and his eyes "were as good as anybody's eyes." The evidence of the boy and his witnesses tended to show that he was eating cake at the mail box as he was in the act of taking the mail from it, and that he was struck without warning or signal from the automobile; that he had seen the automobile about one-eighth of a mile down the road coming at a high rate of speed, but that the road was about twenty-six feet wide at that point, and he was on the edge of the road close enough to the mail box to take the mail therefrom.

The evidence of the defendant, and his witnesses, tended to show that, just before the accident, he saw the boy standing in the wagon, which had a bed or body about twelve inches in depth, as though he was about to jump from the wagon; that, seeing this situation, he put on his brakes slightly, and that the boy did not jump until he was within a few feet, when he saw the boy jump and immediately shoved on his brakes to their full extent, having a four-wheel brake, in good order, and swerved his car to the north in order to give the boy opportunity, if possible, to make it across the road, but that the right fender of his car struck the boy and knocked him several feet; that he did all he could to stop his car and avoid the accident; that his car skidded; and that he was running, perhaps, twelve or fifteen miles per hour just before the accident; that, when he saw the boy was going to jump, he was running, probably, twenty-five miles per hour and had his car in neutral.

It will be seen from this statement of facts that the boy's theory was that he was guilty of no negligence, and that the act of striking him by Day was caused by the reckless driving of his car on the public highway at a greater rate of speed than eight miles per hour when passing teams traveling thereon; while appellee, Day's theory was that the boy leaped from the wagon to cross the road at a point not opposite the mail box, and that the boy's injury was entirely the result of his own negligence.

1. The first assignment of error is to the effect that the court erred in refusing to permit the plaintiff to prove that Day had the reputation in the country of being a reckless driver. There are two reasons why the court was correct in its ruling upon this question: First, because the question was not framed in accordance with the rule; and, second, because the evidence as to the general reputation of Day was not competent in this case. The question at issue was whether or not the driver was reckless on this occasion.

2. The second and third assignments of error are based on the refusal of instructions for the plaintiff, and the granting of...