Ripley v. Wilson

• Decision Date: 05 October 1925
• Docket Number: 25040
• Citation: 140 Miss. 845,105 So. 476
• Court: Mississippi Supreme Court
• Parties: RIPLEY v. WILSON. [*]

105 So. 476

140 Miss. 845

RIPLEY v. WILSON. ^[*]

No. 25040

Supreme Court of Mississippi

October 5, 1925

Division B

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

Action by Tilman Wilson, by next friend, J. B. Wilson, against G. D Ripley. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Judgment reversed and cause remanded.

Leftwich & Tubb, for appellant.

It was plain error for the court below to grant a peremptory charge on the question of liability. Ripley's evidence, if believed by the jury, in any particular, tended to make a defense, and the peremptory charge was improper. We recognize the full force of the law of the road, as found in section 4412, Code of 1906; section 7092, Hemingway's Code. We also recognize the full force and effect of section 5781 Hemingway's Code, chapter 143 on Motor Vehicles; but after all this is done, when an emergency occurs at a street crossing, or when danger of a collision arises, the law of the road is not the unbending test.

It does not lie in the mouth of the appellee, Wilson, to say that defendant Ripley was liable because he was on the wrong side of the road when the collision occurred, when it is undisputed, according to the defendant's testimony, that Ripley never would have been on the wrong side of the road but for the fact that he was exerting a strenuous effort to avoid a collision with Wilson's rapidly moving car coming without warning. This court has held that running an automobile at an illegal or forbidden rate of speed in a city, as was in Amory, is negligence per se. Ullman v. Pistole, 115 Miss. 485.

Our court, in commenting on section 4412, Code of 1906, section 7092, Hemingway's Code, giving the law of the road, justifies its violation where it appears necessary to take the other side. The rule is not an inflexible one, and circumstances may arise which may make it necessary to violate it. Pallotta v. Jackson Light & Traction Co., 107 Miss. 61, 64 So. 938.

This same question has arisen in many jurisdictions. In many courts, in fact we may say courts everywhere, the mere fact that the defendant was on the wrong side of the road is not the sole test of liability. Huddy on Automobiles (5th Ed.), sections 268, 269, 270, 271, 272, 273 and 274; Bragdon v. Kellog, 6 A. L. R. 669, and note at 676; Allen v. Schultz, 6 A. L. R., note at 680; Pilgrim v. Brown (1914), 168 Iowa 177, 150 N.W. 1. See also 24 A. L. R. 1308; Kearney v. Castellotti (1921), 55 Cal.App. 541, 203 P. 1029.

It is useless, of course, to cite authorities to the effect that it is error to grant a peremptory charge when the evidence conflicts. Davis v. George, 87 So. 274.

Even if it be admitted, for argument's sake alone, that Ripley, in turning to the right to avoid a collision made a mistake, and it would have been safer to have taken some other course, yet in this emergency produced by the careless driving of the plaintiff, Ripley is not held for the negligence. In such emergencies, the defendant is held only to his best judgment, and it is for the jury to say whether or not his conduct in the premises was reasonable. We submit it is beyond controversy that this case should have been submitted to the jury on proper charges from the court.

So many questions are integrated 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. Bell v. Southern Railway Co., 30 So. 821; Laurel Merc. Co. v. Mobile & Ohio Ry. Co., 87 Miss. 675, 40 So. 259.

Where the facts are controverted, the question whether the plaintiff is barred by reason of contributory negligence is always for the determination of the jury. Vicksburg, etc., R. R. Co. v. McGowan, 62 Miss. 682; Nesbitt v. Greenville, 69 Miss. 22; Alabama, etc., R. R. Co. v. Lowe, 73 Miss. 203.

Where even the facts are conceded, but the inference in regard to negligence is still doubtful, depending upon the general knowledge and experience of men, then the question of negligence is for the jury and not the court. Southern R. R. Co. v. Floyd, 55 So. 287.

Generally the fact as to whether an accident would ordinarily happen, had due care been exercised by defendant should be left to the determination of the jury. Alabama, etc., R. R. Co. v. Groome, 52 So. 703. See also Dent v. Town of Mendenhall, 104 So. 82. Very palpably here the trial court had no right to take the question from the jury.

J. O. Prude, D. W. Houston, Sr. and D. W. Houston, Jr., for appellee.

If defendant was negligent and his negligence proximately contributed to the injuries this young man suffered, then his liability is fixed, and the court was right in granting a peremptory instruction, even though the plaintiff himself may have been guilty of negligence, and such negligence as contributed to his injuries. Section 5781, Hemingway's Code, absolutely makes it the duty of drivers of vehicles to keep to the right of street intersections.

Did the plaintiff comply with this provision of the law of the road? There is no testimony whatever in the record to show that he did not do so, therefore, no dispute, conflict of testimony or controverted question of fact as to the plaintiff complying with this requirement.

Did the defendant comply with this provision of the law of the road? The plaintiff testified that when he first saw Mr. Ripley he was on the right-hand side of the road, and that when Mr. Ripley saw him he got faster and tried to beat him across the street, and in his attempt to do so that he veered, or turned his car to the left-hand side of the road, and struck him on the left-hand side of the road.

Certainly, it is plain to anyone of common experience and intelligence that he should, and could, have stopped his car and avoided this collision. Even if he had slackened the speed of his car, it is clear to the ordinary mind that running at the rate of speed which he says that plaintiff and he were running that the car driven by the plaintiff would have cleared the intersection of these two streets in ample time for the defendant to have passed to the right and behind the plaintiff, as the law required him to do, without the collision that occurred.

But what does the defendant do under such circumstances, as testified to by the other witnesses and as admitted by himself. He speeds up his car and turns or veers to the left-hand side of the street in an attempt to beat the plaintiff across the intersection of said streets, and in doing so, pushes the plaintiff as far on the right-hand side of Fourth street as plaintiff could have gotten and runs forty-five paces, or one hundred and thirty-five feet. He admits he could have stopped within fifty or sixty feet, thus the collision could have been avoided if he had stopped, or even attempted to stop, or slackened the speed of his car, which would have given plaintiff ample opportunity to have cleared the intersection.

Certainly, the lower court had a right, under all of the facts and circumstances developed by this record where they were undisputed and uncontroverted, as we have shown they were, to decide that the defendant was guilty of negligence; and that this negligence was the proximate cause of the injuries suffered by the plaintiff; and to instruct the jury peremptorily to find for the plaintiff; instructing them further that if they believed from the evidence that both plaintiff and defendant were negligent, then, in that case, the damages, if any, suffered by the plaintiff should be diminished in proportion to the amount of negligence for which plaintiff was responsible, all as shown by the evidence, which the court did do by granting defendant the instruction he did grant. Allen v. Schultz, 6 A. L. R. 676-690, cited by counsel, is really in our favor.

Allen v. Schultz, also distinguishes Sheffield v. Union Oil Co., 82 Wash. 386, 144 P. 529, from it, showing that the Sheffield case was one as to the contributory negligence of the injured party, just as was Pilgrim v. Brown (1914), 168 Iowa 177, 15 N.W. 1, quoted by counsel.

The same distinction applies to the instant case. See 27 A. L. R 1203; Alamo Iron Works v. Prado, 120 Tex. Civ. App. ...