Rhodes v. Fullilove

• Decision Date: 25 May 1931
• Docket Number: 29472
• Citation: 161 Miss. 41,134 So. 840
• Court: Mississippi Supreme Court
• Parties: RHODES v. FULLILOVE

134 So. 840

161 Miss. 41

RHODES v. FULLILOVE

No. 29472

Supreme Court of Mississippi

May 25, 1931

Division B

APPEAL from circuit court of Carroll county, Second district, HON JNO. F. ALLEN, Judge.

Action by C. O. Rhodes against J. G. Fullilove. Judgment for the defendant, and the plaintiff appeals. Reversed and cause remanded.

Reversed and remanded.

J. W Conger, of Winona, for appellant.

Trucks shall not operate at a greater rate of speed than thirty miles per hour.

Chapter 201, Laws 1928.

The operator of a car is entitled to the reasonable use and enjoyment of the streets and highways so long as operates his car in a careful manner, but the negligent and reckless operator who drives his car at a dangerous or unlawful rate of speed in disregard of the rights and safety of others should be held to strict accountability, both civilly and criminally for his wrongful conduct.

Ulmer v. Pistole, 76 So. 522, 115 Miss. 485.

The rule of reasonable care is applied to the wrecker and the rule of reasonable care is applied to the circumstance of each case and the particular circumstances control.

Duke v. Mitchell, 122 So. 189.

Motorist must drive at rate of speed enabling him to avoid injury to persons who should come under his observation, and driving an automobile at night at a speed not permitting driver to avoid injury to persons coming within range of headlights is negligence.

Frazier v. Hull, 127 So. 775.

The law gives a person the right to assume that the other person will do the reasonable and proper thing at the proper time.

Aycock v. Burnett, 128 So. 100.

Defendant's instruction No. 1 is wrong because it assumed that the truck driver, and left this inference with the jury, had a perfect right on that side of the road and off of the highway and did not follow the evidence in the case, and made the jury believe that one who is off the highway endeavoring to escape to save his life and is hit by a driver under the evidence is "voluntarily placing himself in front of the defendant's approaching automobile."

Defendant's instruction No. 2 is wrong because it tells the jury that the truck driver had a right to assume that the way is clear, when the law is that a truck driver or any driver must assume that the way is not clear; and it told the jury that if some other persons had negligently obstructed the highway then it was the sworn duty of the jury to find for the plaintiff. Not a word said about proximate cause.

Defendant's instruction No. 7 tells the jury that the truck driver did not have to turn to the left, unless the vehicle that he was passing was traveling, meaning moving, and was being actually overtaken. It said nothing whatever about the stopped cars.

The actions of the plaintiff must be judged in the light of what was reasonable under the circumstances as they appeared in the evidence.

Franks v. Armstrong, 120 So. 829, 152 Miss. 719.

D. E. Crawley, of Kosciusko, for appellee.

If it reasonably appeared necessary to driver of appellee's car, to turn off the road to avoid a collision, he was not negligent.

Priestly v. Hays, 147 Miss. 843, 112 So. 788.

To drive an automobile on a highway at a greater speed than the statute permits is negligence per se but, in order for the unlawful speed to be an element of liability for an injury inflicted by an automobile while being driven at an unlawful speed it must appear that the unlawful speed was a proximate contributing cause of the injury.

Rowland v. Morphis, 130 So. 906; 2 Blakesfield Cyc. of Automobile Law, paragraph 1221.

It is plainly evident that if the appellant had kept his position that he would have avoided injury. The fact that he voluntarily placed himself in the path of appellee's approaching automobile is the sole proximate cause of appellant's injuries, and for which the appellee is in no wise responsible.

Argued orally by J. W. Conger, for appellant, and by D. E. Crawley, for appellee.

OPINION

Anderson, J.

Appellant brought this action against appellee in the circuit court for the second judicial district of Carroll county, to recover damages for a personal injury suffered by appellant as the result of being struck by a motor truck belonging to appellee, alleged to have been caused by the negligence of the latter's servant in operating the truck. The trial resulted in a verdict and judgment in favor of appellee, from which judgment appellant prosecutes this appeal.

Appellant assigns as errors the action of the court in refusing to direct a verdict in his favor; in the giving of certain instructions for appellee; and in admitting certain evidence for appellee over appellant's objection.

S. R. Wright was the manager of a company dealing in Chevrolet cars, located in Vaiden, in Carroll county; and, in addition, engaged in the repair of automobiles. Appellant was an automobile mechanic, in the employ of Wright. On September 220, 1930, between seven and eight o'clock (after dark), Mr. Wright was called to repair a crippled car located north of Vaiden, on highway No. 51, which highway runs north and south through the town. The crippled car was located about seventy-five yards north of the north line of the corporate limits of the town. The crippled car was facing north, and located near the east side of the highway, at which point the highway was about twenty-seven feet wide. Mr. Wright took appellant in an automobile, and drove to the place where the crippled car stood. He drove his car to the north of it, turned around, and came south on the east side of the highway, facing the crippled car something like two feet in front of it. There he stopped his car, with its left headlight shining directly on the front of the crippled car, and its right headlight illuminating the highway on the west side of the crippled car. Thereupon appellant got out of the Wright car, and walked around to the rear of the crippled car for the purpose of ascertaining what repairs were necessary.

The crippled car had no danger lights on its rear. The situation of the two cars, and the surroundings, were therefore substantially as follows: The crippled car was facing north, and on the east side of the highway, near the east edge, with no danger light at its rear. The Wright car was facing south, with its front within something like two feet of the front of the crippled car, and was also near the east edge of the highway, with its left-hand light obscured from the south by the crippled car, while its right-hand light was far enough west of the crippled car to throw its rays south down the highway. The two cars, so situated left unoccupied to the west something like fifteen to eighteen feet of the highway. Appellant, as stated, was standing near the rear of the crippled car, making an examination of it, in order to determine what repairs were necessary.

The appellee was a retail grocer in the town of Vaiden, and delivered to his customers within and without the corporate limits of the town, by means of a truck, which, at the time of appellant's injury, was being driven north on the highway by a negro, Sherman Davis, to deliver groceries to a customer. About four hundred yards south of the place where the accident occurred there is a hill. The driver of appellee's truck testified that when he reached the peak of this hill he saw the lights of the Wright car; the truck was going about fifty miles an hour; he was unable to determine whether the Wright car was moving or standing still, or whether it was on his right-hand side of the road, the middle, or the left side, and that as he approached the two cars he slowed the truck, to use the language of the witness, "down to about thirty or thirty-five miles an hour;"...