Rivers v. Turner

• Citation: 78 So.2d 903,223 Miss. 673
• Decision Date: 28 March 1955
• Docket Number: No. 39527,39527
• Parties: J. D. RIVERS, a Minor, v. W. J. TURNER, Jr.
• Court: United States State Supreme Court of Mississippi

Page 903

78 So.2d 903

223 Miss. 673

J. D. RIVERS, a Minor, v. W. J. TURNER, Jr.

No. 39527.

Supreme Court of Mississippi.

March 28, 1955.

M. V. B. Miller, Gerald Adams, Meridian, Frank Clark, Waynesboro, for appellant.

John W. Backstrom, Sr., Leakesville, M. M. Roberts, Hattiesburg, for appellee.

KYLE, Justice.

This case is before us on appeal by J. D. Rivers, a minor 15 years of age, plaintiff in the court below, from a judgment of the Circuit Court of Greene County rendered in favor of W. J. Turner, Jr., defendant in the court below, in an action for damages for personal injuries sustained by the plaintiff as a result of an automobile accident which occurred on U.S. Highway No. 45, about two miles south of the Town of Waynesboro.

The record shows that the accident occurred about 10 o'clock at night on September 11, 1953, at a point on the highway about 200 yards south of the drive-in theater where the appellant worked. The appellant was riding a bicycle southwardly along the right hand traffic lane of the highway, when the bicycle was struck from behind by the appellee's automobile, which was a 1953-model Ford. The appellant was thrown forward on to the pavement and sustained serious bodily injuries. The bicycle which he was riding had been purchased by him from the Western Auto Company at Waynesboro about three weeks before the accident occurred; and according to the testimony of the appellant and his witnesses, the bicycle was equipped with a proper headlight and a rear red reflector which could be seen for a distance of several hundred feet by the driver of an approaching vehicle. The appellant's sister was riding on the bicycle with him at the time of the accident, and she too was thrown from the bicycle and sustained personal injuries.

The plaintiff alleged in his declaration that his injuries were proximately caused by the defendant's negligence in the operation of his automobile, in that the defendant failed to keep a proper lookout for other persons along the highway, and in that the defendant failed to keep his car under proper control, or to warn the plaintiff of his approach, and in that the defendant was driving his car at an excessive rate of speed. The defendant in his answer denied each of the above mentioned acts of negligence; and the defendant pleaded as an affirmative defense that the plaintiff's injuries were due to his own failure to keep a proper lookout for automobiles approaching from the rear and to keep his bicycle under proper control; and that the plaintiff carelessly and negligently left a place of safety on the westerly shoulder of the highway and darted into the lane of travel of the defendant's automobile, thereby creating an emergency which was the proximate cause of the accident.

The appellee, testifying as an adverse witness for the plaintiff, stated that he and John Neal Kittrell had attended a football game at Waynesboro and were returning to their home at Leakesville at the time of the accident. Three other boys were riding on the back seat of the car. When the appellee first saw the plaintiff and his sister on the bicycle, they were about 50 feet in front of him. The appellee was driving at a rate of speed of 45 or 50 miles an hour. He did not have time to blow his horn after he saw the plaintiff on the highway. He applied his brakes immediately but was unable to bring his car to a stop before striking the bicycle. He could not cut his car to the right or to the left, for the reason that there were pedestrians on the right shoulder of the highway and another car was approaching from the south. The appellee stated that his brakes and the lights on his car were in good condition. He did not see any lights on the bicycle.

The appellant testified that he worked at night at the drive-in theater; that he had quit work about 10 o'clock and was riding southwardly on the black top pavement toward his home, at a rate of speed of 8 or 10 miles an hour, when he was struck by the automobile approaching from the rear. The appellant stated that no horn was blown, and that he did not know that the automobile was approaching until he heard the brakes 'squealing'. He was rendered unconscious by the blow that he received when the automobile struck his bicycle and he was thrown to the pavement. He was carried to the hospital at Waynesboro and remained there eleven days. His leg was put in a cast, and he was unable to work for several weeks after being discharged from the hospital. The appellant stated that the headlight on the bicycle was burning, and the red reflector on the rear end was in good condition.

R. C. Austin, a state highway patrolman, testified that he arrived at the scene of the accident almost immediately after the accident occurred. The appellant was lying on the pavement 10 or 15 feet in front of the appellee's car, the bicycle was off in the ditch. The appellant was partly conscious and appeared to be suffering. He was carried to the Wayne General Hospital soon after the patrolman arrived. The patrolman asked who was the driver of the car, and the appellee stated that he was. The patrolman then asked him how the accident happened, and the appellee stated that he hit the bicycle. The appellee said, 'I am sorry I hit it, but I just didn't see it until I was right on it.' The patrolman then asked the appellee how fast he was going, and the appellee said, 'Well, I don't think I was going over 60.' The patrolman testified that there were skidmarks for a distance of 88 feet on the pavement. The lights on the bicycle were knocked out, and the red reflector was broken in pieces and was scattered on the pavement. The patrolman testified that a red reflector on a bicycle could be seen a long distance, 500 feet or more--'As long as your headlights shine on that reflector, you can see it.' The patrolman stated that the Ford automobile had proper lights on it, which could be seen for a distance of several hundred feet. He stated that the highway running north from the scene of the accident was straight for a distance of a little over a mile, that the accident occurred about 2 miles south of Waynesboro, and a little over 200 yards south of the drive-in theater. There were a good many people and a lot of automobiles on the highway that night. In answer to a question propounded to him on cross-examination by the defendant's attorney, the patrolman stated that an automobile traveling at the rate of 45 miles an hour would not skid 88 feet. On redirect examination by the plaintiff's attorney he stated that in his judgment the driver of the automobile was going at least 70 miles an hour.

Harry Byrd, Wayne Williams, Billy Joe Williams and John Neal Kittrell, who were riding in the appellee's car at the time of the accident, testified that the car was traveling at a rate of speed of 45 or 50 miles an hour. Harry Byrd testified that some one in the car hollered 'lookout' and 'when I looked up this little Negro boy and girl was in front of us, going right out in front of us, going toward the other side of the road.' The appellee put on his brakes immediately and tried to avoid hitting them. On cross-examination Byrd stated that he never did see the appellant off the pavement. Wayne Williams testified that he saw the Negro boy coming out off the shoulder into the highway toward the center of the road. The boy was 50 or 60 feet ahead of the car when he first saw him. Billy Joe Williams testified that he first saw the bicycle when John Neal Kittrell hollered 'lookout'. The bicycle at that time appeared to be angling across the highway toward the center line. The appellee put on his brakes immediately. There were some Negroes and another bicycle on the right shoulder, and another car was coming from the south. The bicycle was about 50 feet ahead of them when he first saw it. The headlights of the automobile were in good condition. But they were on dim because the appellee was meeting another car.

John Neal Kittrell testified that when he first saw the appellant and his sister on the bicycle, they were on the shoulder of the road, off the pavement, and 'they just darted right out in front all at once there.' Kittrell called to the appellee to look out, and the appellee applied his brakes immediately. Kittrell estimated that the Ford car had been slowed down to 20 or 25 miles an hour when the collision actually occurred. There were other Negroes on the side of the road and another bicycle. He saw no headlights on...