Robinson v. Colotta

• Decision Date: 13 May 1946
• Docket Number: 36115.
• Citation: 26 So.2d 66,199 Miss. 800
• Court: Mississippi Supreme Court
• Parties: ROBINSON v. COLOTTA.

26 So.2d 66

199 Miss. 800

ROBINSON v. COLOTTA.

No. 36115.

Supreme Court of Mississippi

May 13, 1946

Ernest Kellner, of Greenville, for appellant.

Forrest G. Cooper, of Indianola, for appellee.

L. A. SMITH, Sr., Justice.

The appellant sued the appellee in the Circuit Court of Sunflower County for alleged repairs to appellant's taxicab and loss of profits from the use thereof, and punitive damages, charging that a collision between his taxicab and a truck of appellee on July 4, 1945, was proximately due to negligence in the operation of appellee's truck in his business.

About 1:30 in the afternoon on the day of the occurrence appellant's driver, Logan, was operating his taxicab on Nelson Street in Greenville, going in an easterly direction when appellee's truck, driver by his driver, on the same street, was going in a westerly direction. The collision occurred at an intersection of Nelson and Hinds Street. Nelson Street runs east and west, and Hinds Street runs north and south. In the middle of Nelson Street there are parkways planted to vegetation, which are located on the former right of way of an abandoned street car system. The day was clear and there was nothing to obstruct the vision of either driver, and each could have and should have seen the other. When the taxicab passed a point east of the center of the intersection, it turned left and north and was apparently in that position when the truck reached the intersection. Instead of passing west beyond the center of the intersection, the truck cut the corner of the parkway in such a wasy that the right front side of the truck struck the left front part of the taxicab. The driver of the taxicab testified that he saw the truck shortly before the collision and tried to turn to the right out of its way but could not. The driver of the truck testified that he did not see the taxicab until he was right on it, in spite of maintaining a lookout. The truck was on the wrong side of the intersection the best we can discern from the record. In our judgment, the driver of the truck should have seen the taxicab, and his failure to see it cannot be plead in defense. There is a map of the intersection filed in the record, but it is exceedingly difficult for us to find much assistance from this diagram. The witnesses, who testified as to it, merely pointed to 'here' and to 'there', and in referring to the corners, did not specify which of the four corners was thus designated so that we could identify same. The testimony was thus rendered unclear, from the manner in which the witnesses pointed out before the jury the locations of the various incidents of the event on the map. This method almost brought the case into the condemnation of Hume et al. v. Inglis et al., 154 Miss. 481, 122 So. 535, and it is to be hoped that on the retrial of this cause the re-creation of the situations will be made clear, both on the map and from the method of eliciting testimony from the witnesses.

Appellant further complains that he was improperly refused two instructions by the trial court, and that all of the instructions granted appellee were erroneous. Appellant asked for and was refused an instruction that the driver of the truck of the defendant was negligent in cutting the intersection of Nelson and Hinds Streets, and that he was guilty of negligence in failing to be on the lookout in entering said intersection, and if the jury believed from the evidence that the aforesaid negligence was the proximate cause of the collision shown by the evidence, it was their duty to find for the plaintiff and to...