Robinson v. Haydel

• Citation: 177 Miss. 233,171 So. 7
• Decision Date: 07 December 1936
• Docket Number: 32432
• Court: United States State Supreme Court of Mississippi
• Parties: ROBINSON v. HAYDEL et al

171 So. 7

177 Miss. 233

ROBINSON v. HAYDEL et al

No. 32432

Supreme Court of Mississippi

December 7, 1936

Division B

1 AUTOMOBILES.

City ordinance, fixing automobile speed limit outside business district, not statute fixing lower limit on highways in closely built-up territory, controls speed in city outside such district (Code 1930, sec. 5569).

2 AUTOMOBILES.

Instruction that it was truck driver's duty to operate truck at safe rate of speed held properly refused; law requiring only reasonably safe rate (Code 1930, sees. 5569, 5588),

3 TRIAL.

Refusal of plaintiff's instruction embodying principle of contributory negligence after giving him instruction embodying such principle was justified.

4 TRIAL.

Instruction that plaintiff's failure to use physician, who attended him after injuries sued for, as witness may create presumption that such physician's testimony would be unfavorable to plaintiff, held not erroneous as abolishing protection of privileged communications statute (Code 1930. sec. 1536).

5. EVIDENCE.

Party's failure to produce witness, whom such party, but not his adversary, can produce, raises presumption that facts known to such witness, if any one, do not exist.

HON. W. A. WHITE, Judge.

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

Action by B. B. Robinson against George B. Haydel and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Affirmed.

Mize, Thompson & Mize, of Gulfport, for appellant.

The court erred in refusing to grant a peremptory instruction for the plaintiff. This instruction requested reads as follows: "The court instructs the jury for the plaintiff that the defendants were negligent in operating the truck which the defendant Cody was driving at a greater rate of speed than 20 miles an hour."

The defendant Cody admitted that he was driving the truck twenty-five miles an hour at the time of the collision. That the territory contiguous thereto was closely built up and that he had just passed 36th Avenue. That the street was straight but that he did not see the plaintiff's car until he was in one hundred or one hundred fifty feet of it. It was clearly negligence on the part of the driver in driving at twenty-five miles an hour on a straight street with unobstructed view and not see as large an object as an automobile.

The city ordinance is substantially the same as the state laws.

Section 5569 of the Code of 1930 governs the traffic rules and section 5575 governs with reference to brakes. There was no effort on the part of the defendant to apply the brakes. According to his own testimony he was running his car not less than twenty-five miles an hour on a city street where the territory is closely built up, and where he has a clear view and he did not see the automobile until he was within one hundred or one hundred fifty feet of it. We submit that this is negligence as a matter of law. That if he is going to so operate his automobile truck that he cannot see another automobile until he is within one hundred fifty feet of it, then he should not drive at a speed of twenty-five miles an hour. Under the authorities the defendant was guilty of negligence and this peremptory instruction should have been given.

Ulmer v. Pistole, 100 Miss. 485; Snyder v. Campbell, 145 Miss. 287; Terry v. Smyly, 161 Miss. 31.

It is a violation of the law to operate the truck at a speed greater than twenty miles an hour and the violation of every statute for the protection of the public is negligence. It then becomes a question for a jury to determine as to whether the negligence is the proximate cause of the injury in a great many cases, but certainly plaintiff was entitled to the instruction that the violation of the statute was negligence.

Lucedale Automobile Co. v. Daughrill, 154 Miss. 707; Wheat v. Wheat, 102 Miss. 595.

It is the law in this state that the driver of a car must keep a reasonable lookout for other cars and he must also drive it at no greater rate of speed than is reasonable and proper, having due regard to the traffic and use of the highway, etc.

Snyder v. Campbell, 145 Miss. 287.

It was error of the court to refuse to instruct the jury at the request of the plaintiff in substance that it was the duty of the defendant to operate his automobile at a safe rate of speed, and in a reasonably safe manner, having due regard for the life and limb of the public, and that if the jury believed that the defendant, acting through his agent, failed to do so, and that such action was negligence proximately contributing to the injuries of the plaintiff, then they should find for the plaintiff.

The court erred in refusing the instruction which told the jury if it believed that the defendant was guilty of any negligence proximately contributing to the damages of the plaintiff, if any, then they should find a verdict for the plaintiff even though the plaintiff might have been guilty of contributory negligence, but that it would be the duty of the jury to reduce the damages allowed in proportion to the amount of negligence attributable to the plaintiff. This instruction was absolutely correct.

Section 511, Code of 1930; Y. & M. V. R. R. v. Carroll, 103 Miss. 830; Miss. Central R. R. v. Robinson, 106 Miss. 896; I. C. R. R. v. Handy, 108 Miss. 421; Lindsey Wagon Co. v. Nix, 108 Miss. 814; I. C. R. R. v. Archer, 113 Miss. 158; Y. & M. V. R. R. v. Williams, 114 Miss. 236; Miss Central Ry. v. Lott, 118 Miss. 816; Talla Halla Lbr. Co. v. Holliman, 125 Miss. 308; Davis v. Elzey, 126 So. 789; Dent v. Mendenhall, 139 Miss. 271; G. & S. I. R. R. v. Saucier, 139 Miss. 497; Morrell Packing Co. v. Branning, 155 Miss. 376.

The error in refusing this instruction was not cured by the giving of another instruction as the court in the giving of this instruction required that the plaintiff's negligence be in a less degree than that of the defendant. Of course, the plaintiff cannot complain of the instruction requested by him, but plaintiff was required to take what he could get, and since the court would not give plaintiff all he was entitled to when the court refused the instruction complained of the plaintiff then took what the trial court would give him, and that was that plaintiff's contributory negligence would not bar recovery if the plaintiff's contributory negligence was less than was the negligence of the defendant. The plaintiff was entitled to the instruction requested without regard to the degree of the negligence of the various parties.

The giving of argumentative instructions and giving undue prominence to a part of the evidence in the case has been condemned by this court.

Potera v. City of Brookhaven, 95 Miss. 974; Hooks v. Mills, 101 Miss. 91.

The plaintiff is not required to prove that Iris injury was the direct and proximate result of the negligence of the defendant, but if defendant's negligence is one of the contributing causes of the plaintiff's injury then the plaintiff is entitled to recover.

Section 511, Code of 1930; Raglan v. Native Lbr. Co., 117 Miss. 602; Railroad Co. v. Lindsey, 120 C. C. A. 166; Seafood Co. v. Alvis, 117 Miss. 1.

The court erred in giving the instruction with reference to the failure of the plaintiff to call his practicing physician who treated him. Section 1536 of the Code of 1930 provides that the communications between physician and patient are privileged and this privilege can be claimed at any time. The patient does not waive his right to claim the privilege by admitting on cross examination that he was willing for his physician to testify.

Coca Cola Co. v. Simpson, 158 Miss. 390.

If the plaintiff claimed this right then the giving of an instruction couched in the language this instruction is absolutely wipes out the benefit of any such privilege. The giving of the instruction is also a charge on the weight of the evidence in that it singles out certain parts of the evidence and gives undue prominence to it, then proceeds further and states that it may create a presumption that such testimony would be unfavorable to the plaintiff.

R. A. Wallace, of Gulfport, for appellees.

The maximum speed limit on Tenth street, as provided by section 3 of the Municipal Traffic Ordinance which is in the evidence, is thirty miles per hour. This ordinance is duly authorized by part of section 5569, Code of 1930.

The evidence relating to the question of whether or not the territory contiguous to Tenth street is closely built up in contemplation of the provisions of section 5569, Code of 1930, and the provisions of section 3 of the municipal ordinance, relied on by the appellant to support his view that it was negligence per se for the driver of the truck to operate it at a rate of speed of twenty-five miles per hour, rests upon the bare opinions of certain witnesses who testified in the case. These opinions so expressed by the witnesses, for the purposes of a judicial determination of any one of the issues in this case, amounts to no more than conjecture which has no proper place in judicial proceedings in this state.

Columbus & G. R. R. Co. v. Coleman, 172 Miss. 514, 160 So. 277.

The appellant, in his testimony in Ms own behalf, corroborates the testimony supporting the appellees' theory of the case, in all of its particulars, except he estimated the speed of the truck to have been between forty-five and fifty miles per hour, which the jury repudiated.

The appellee Cody was only required by law to operate the truck with that degree of care and at that rate of speed consistent with the conditions existing in the street he was using; at the time he was using it, the rate of speed at which he could legally travel, and the control of the truck which he was legally required to...