S & W Const. Co. v. Douglas, 42354

• Decision Date: 11 June 1962
• Docket Number: No. 42354,42354
• Court: Mississippi Supreme Court
• Parties: S & W CONSTRUCTION COMPANY, Inc. v. Maurice DOUGLAS.

Page 33

142 So.2d 33

244 Miss. 498

S & W CONSTRUCTION COMPANY, Inc. v. Maurice DOUGLAS.

No. 42354.

Supreme Court of Mississippi.

June 11, 1962.

Brewer, Brewer & Luckett, Clarksdale, Chandler, Manire & Chandler, Memphis, Tenn., for appellant.

Talbot, Sullivan & Dunbar, Clarksdale, Burch, Porter, Johnson & Brown, Memphis, Tenn., for appellee.

McELROY, Justice.

The appellee, Maurice Douglas, sued S & W Construction Company, Inc., in the Circuit Court of Coahoma County, Mississippi, for damages for personal injuries sustained in an accident which occurred in Shelby County, Tennessee. From a verdict and judgment for $150,000, appellant appeals.

On the night of November 11, 1958, appellee was a passenger in an automobile being driven by Kelly Beretta in a southerly direction along U. S. Highway 51, in Shelby County, Tennessee. Highway 51 is a main through highway running from Memphis to New Orleans. Prior thereto appellant had constructed a detour, or runaround, on said highway for use while an overpass, or exchange, was being constructed on the highway. This construction was done by appellant under a contract with the Tennessee State Highway Department, but the contract is not in the record. As appellee and Beretta approached the detour from the north there were detour signs beginning about 1000 feet north of the detour which signs showed 'Detour, Slow.' These signs showed arrows, electric lights and 'Road Closed.' There were also barricades indicating the detour with directions to turn west or right to go on the detour around the construction. The detour itself was forty feet wide, paved with asphalt, with a white strip down the center. There were two traffic lanes in each direction. After entering on the detour there were no signs, speed limit signs, reflective delineators, lights, or other warning devices; there were no guard rails. The shoulders of the detour were approximately three feet wide. The detour was on a fill so that the actual travelled part thereof was elevated above the surrounding terrain. A guard rail was required by the contract. Prevailing safety practices required the erection of maximum speed limit signs. According to experts, the detour could not be safely travelled at a speed over 25 miles per hour.

Just as the Beretta automobile rounded the curve at the south end of the detour it had a flat tire. The shoulders were too narrow to allow the automobile to be driven entirely off the travelled portion of the detour. Beretta pulled his automobile to the right as far as he could. He was immediately south of the curve leading back into the highway proper. Part of his automobile was on the shoulder and part was in the right hand traffic lane. Beretta and appellee got out of the automobile to fix the flat tire. The left rear tire was flat. Appellee took off the hub cap and loosened the lugs while Beretta jacked up the automobile. Appellee then pulled off the flat tire and rolled it to Beretta, who rolled the spare to appellee. Appellee slipped the spare on and began tightening the lugs while standing or squatting on the pavement to the left of the rear wheel. He looked up and car lights 'were on top of me.' An automobile travelling south at a speed of about 40 or 45 miles per hour ran over appellee inflicting serious, painful and permanent injuries, including the loss of both legs. Appellant was charged with thirteen acts of negligence, all in connection with the construction and maintenance of said detour or runaround.

Appellant contends that it was not suable in Coahoma County, Mississippi, on the ground that appellant is a Tennessee corporation, plaintiff is a resident of Tennessee, and the accident occurred in Tennessee. Appellee contends that appellant qualified to do business in Mississippi in 1948, and appointed a resident agent for the service of process, and service was had on said agent. We hold that the Circuit Court of Coahoma County had jurisdiction to hear the case. Vicksburg S. & P. R. Co. v. Forcheimer, 113 Miss. 531, 74 So. 418; New Orleans, J. & G. N. Railroad Co. v. Wallace, 50 Miss. 224; Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53; Sec. 1440, Sec. 5319, Mississippi Code of 1942, Recompiled.

At the conclusion of the evidence appellant requested and was denied a directed verdict. This is assigned as error and we hold that the directed verdict should have been given.

It is conceded by the parties that the law of Tennessee applies on the question of liability. It is also conceded that in Tennessee contributory negligence is a bar to recovery. The rule in Tennessee in that regard is that if the plaintiff was guilty of direct and proximate contributory negligence, contributing to the injuries and damages to plaintiff, then that direct and proximate negligence, however slight, bars recovery. But negligence which was not direct and proximate, but only remotely contributing to the injury and damage, does not bar recovery. The question arises whether as a matter of law appellee was guilty of direct and proximate contributory negligence.

In the Tennessee case of Donaho v. Large, 25 Tenn.App. 433, 158 S.W.2d 447, plaintiff was run down by a truck while walking on the right edge of the highway in violation of the statute which required him to walk facing traffic. In holding that plaintiff's negligence barred his right of recovery as a matter of law, the court based its decision on the fact that plaintiff placed himself in a dangerous position and failed to use any degree of care for his own safety when he knew or should have known that he was in immediate danger of being injured. The Court noted...