Priestley v. Hays

• Citation: 112 So. 788,147 Miss. 843
• Decision Date: 23 May 1927
• Docket Number: 26394
• Court: United States State Supreme Court of Mississippi
• Parties: PRIESTLEY v. HAYS. [*]

112 So. 788

147 Miss. 843

PRIESTLEY v. HAYS. ^[*]

No. 26394

Supreme Court of Mississippi

May 23, 1927

Division A

1. MUNICIPAL CORPORATIONS. Instruction making it absolute duty of automobile driver to turn right held erroneous, where defense was defendant turned left to avoid collision (Hemingway's Code, sections 5781, 5785).

In suit for personal injuries received in collision between plaintiff's automobile and delivery truck belonging to defendant, instruction making it absolute duty of automobile driver to turn to right of center of road held erroneous under Hemingway's Code, sections 5781, 5785, where defense was that it reasonably appeared to driver of truck that it was necessary to turn to left to avoid collision with plaintiff's automobile, and there was testimony supporting such theory.

2. MUNICIPAL CORPORATIONS. Defendant held entitled to instruction on theory that automobile driver turned left to avoid collision (Hemingway's Code, sections 5781, 5785).

In action for injuries received in collision between plaintiff's automobile and delivery truck belonging to defendant, defendant was entitled under Hemingway's Code sections 5781, 5785, to instruction embodying his theory that truck driver turned to left under reasonable belief that it was necessary to avoid collision with plaintiff's automobile.

3 TRIAL. Requested instruction held erroneous as assuming plaintiff's negligence in driving automobile on wrong side of street.

Requested instruction, in action for injuries in collision between plaintiff's automobile and delivery truck belonging to defendant on theory that driver of defendant's truck turned to left under reasonable belief that it was necessary to avoid collision, held erroneous as assuming that plaintiff was negligent in driving on wrong side of street, since negligence was question for jury to pass on under all facts and circumstances in evidence.

4 NEGLIGENCE. Requested instruction on comparative negligence in automobile collision held improperly refused (Hemingway's Code, sections 502, 503).

In action for injuries received in collision between plaintiff's automobile and truck belonging to defendant instruction requested by defendant on comparative negligence, under Hemingway's Code, sections 502, 503, held improperly refused, in view of evidence as to negligence.

HON. W. A. White, Judge.

APPEAL from circuit court of Harrison county HON. W. A. WHITE, Judge.

Suit by R. W. Priestley against W. L. Hays. Judgment for plaintiff, and both parties appeal. Reversed and remanded.

Judgment reversed and cause remanded.

Ross, Backstrom & Bickerstaff, for appellant.

The only question presented by this appeal is the adequacy of the verdict by the jury. If the award by the jury is, in the opinion of this court, manifestly inadequate, then we submit that the case should be reversed and remanded for a new trial on the amount of damages. Under the ruling of this court in a long line of decisions, this case should be reversed and remanded for a new trial on the amount of damages only. Scott v. Y. & M. V. Railroad Co., 103 Miss. 522, 60 So. 215; Murphy v. Town of Cleveland, 106 Miss. 269, 63 So. 572; Whitehead v. Newton Oil & Mfg. Co., 105 Miss. 711, 63 So. 219; White v. McRee, 111 Miss. 502, 71 So. 804; Walker Bros. v. Nix, 115 Miss. 199, 76 So. 143.

There is no element of contributory negligence in this case. The defendant asked for an instruction on contributory negligence, which instruction was refused. The undisputed evidence is that when appellant first saw the defendant's truck the said truck was one hundred eighty feet in front of him and that he immediately began turning to his right in order to allow defendant's truck to pass on appellant's left, and also that instead of turning to the right going west the driver of the defendant's truck turned to left going west and headed directly in front of appellant and traversed about two-thirds of the distance between the two cars before finally colliding with appellant on the outside of the street on the right-hand side going west. The appellant gave the appellee all of the street and took to the woods on his own right-hand side, and even after making this extraordinary attempt to evade the impending collision, was unsuccessful, and under no circumstances could there be negligence attributable to the appellant, and the court so found.

Carl Marshall, for appellee and cross-appellant.

The law is firmly established to the effect that when a negligent failure of one driver to keep to the right of the road when approaching a vehicle driven in the opposite direction forces the driver of such other vehicle by apparent necessity to deviate to his left, no holding of negligence of such other driver may be predicated upon the deviation when a collision of the two vehicles occurs. Indeed, it is held in some cases to be negligence for a driver not to turn to the wrong side of the road in technical violation of the law of the road, when there is apparent necessity for him to do so in order to avoid a collision, regardless of the cause of the necessity. J. G. Sims, Administrator, v. W. P. Eleazer et al., 116 S.C. 41, 106 S.E. 854, 24 A. L. R. 1293, and authorities cited in the opinion and editorial note.

It would seem that without exception the ruling of the learned trial court in the case at bar embodied in the granting of the instruction requested by the plaintiff and the refusal of the instruction requested by the defendant is condemned as substantially and materially erroneous by the authorities. See authorities collated in editorial note in 24 A. L. R., pages 1308, et seq. Potter v. Glassell, 146 La. 687, 83 So. 898.

Section 5781 of Hemingway's Code provides that when vehicles meet each other upon the highway going in opposite directions each driver shall turn to his right so as to safely pass. Section 5785 provides that a violation of this statute shall create a prima-facie presumption only of negligence as a proximate cause of the occurrence. The two statutes constitute the law of the case; and it is earnestly insisted that the learned court below committed vitally material error in charging the jury that a failure to comply with the letter of the statute, regardless of the circumstances surrounding the failure, creates a conclusive presumption of liability.

The Mississippi authority of Flynt v. Fondren, 122 Miss. 248, 84 So. 188, does not militate against the position assumed by us. It being an admitted fact that the collision reached its culmination on the south side of the street (that is, on the side to the left of the defendant's driver), the sole issue in the trial below was whether negligence of the plaintiff in turning to his left as the two vehicles approached was the proximate cause of the accident as forcing the defendant's driver to turn to his left in response to an apparent necessity of doing so, in order to avoid collision. There was ample evidence upon which the jury could have determined this issue either way, and the trial court properly submitted the issue of liability to the jury.

The jury having no option but to decide for the plaintiff under the law announced in the court's instruction on the question of liability, the verdict awarded the plaintiff damages in the sum of three hundred fifty dollars. No hint is made of improper conduct or motives on the part of the jury; and the jury having the superior opportunity of viewing the plaintiff, observing his condition, his manner and other indications of credibility and of health, every presumption is indulged in favor of the correctness of the award.

The jury's finding as to damages should not be disturbed. Sullivan v. Gulf & Ship Island Railroad Company, 131 Miss. 136, 95 So. 306; Scott v. Yazoo & Mississippi Valley Railroad Company, 103 Miss. 522, 60 So. 215.

Ross, Backstrom & Bickerstaff, in reply, for appellant.

We have examined the collated authorities and editorial notes in 24 A. L. R., pages 1308 et seq., and the cases there commented upon held that under the facts of each of such cases, it was not negligence for the driver to turn to his left in order to avoid an impending collision, but in none of these cases is it said directly or by inference that a failure of the driver to turn to his left in order to avoid an impending collision is negligence or contributory negligence, and we are not aware of any case which does so hold. Indeed, such a holding would be in direct conflict with section 5781 of Hemingway's Code, which provides that the driver shall reasonably turn to the right of the center of the road so as to allow free passage on his left. See Bow v. Cupples Mercantile Co., 32 Idaho...