Simon v. Dixie Greyhound Lines, Inc

• Decision Date: 27 September 1937
• Docket Number: 32723
• Citation: 179 Miss. 568,176 So. 160
• Court: Mississippi Supreme Court
• Parties: SIMON v. DIXIE GREYHOUND LINES, Inc

176 So. 160

179 Miss. 568

SIMON v. DIXIE GREYHOUND LINES, Inc

No. 32723

Supreme Court of Mississippi

September 27, 1937

Division A

APPEAL from the circuit court of Tishomingo county HON. THOS. H JOHNSTON, Judge.

Action by Albert L. Simon, administrator of the estate of J. Whit Jones, deceased, against the Dixie Greyhound Lines, Inc. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Floyd W. Cunningham and Jas. A. Cunningham, both of Booneville, for appellant.

We contend that this glaring and blinding light needlessly turned upon this dangerous link of the road and needlessly maintained in the highway on the incline ahead of it constituted an unlawful and negligent blocking of the public highway, and that needlessly and carelessly to obtrude into the highway such an abundance of light as to blind the public traffic at so dangerous a place in the highway constitutes not only simple negligence but negligence of a very high degree; that you have not the authority to blind a person who is in a moving vehicle, rob him of his vision and leave him to the mercy of the momentum of a moving automobile on the very brink of a precipice; that it is similar in legal effect to blinding the pilot of an airplane with blinding gas or by extinguishing his lights and leaving him in the darkness, or destroy his sense of vision with any device whatever and leave him to the mercies of a struggle between the momentum of his plane and the laws of gravitation, which is so apt to result in ultimate death.

Schassen v. Columbus George Motor Coach System, 270 P. 530; Palmer v. Marcielle, 175 A. 31; 2 Restatement, Torts, sections 302-303; Mayor and Aldermen of City of Vicksburg v Harralson, 101 So. 713; McWhorter v. Draughn, 102 So. 567; Duke v. Mitchell, 122 So. 189; Tucker v. Gurley, 170 So. 230; Chadwick v. Bush, 163 So. 823.

The instinct of self-preservation and the disposition of men to avoid personal harm reinforce an inference that a person killed or injured was in the exercise of ordinary care. For similar reasons it is to be inferred that the death of a sane person is not attributable to suicide.

22 C. J., Evidence, page 94, sec. 35; 16 Cyc. 1057; Jefferson Standard Life Ins. Co. v. Jefcoats, 143 So. 842; Massachusetts Protective Assn. v. Crawford, 102 So. 171; Texas, etc., R. Co. v. Gentry, 41 L.Ed. 186.

The court erred in excluding the evidence of O. P. Nunley, offered by the plaintiff as to the spontaneous statements made by plaintiff's decedent at and so near the time of the serious and fatal personal injury to decedent as to make such statements a part of the res gestae, being to the effect that decedent, while in his car which had just debouched from the fill into the gorge below, said, "How come me here?" or words to that effect; and the statement made just as he came out of the car and was being carried up the bank in a dazed condition, that, "The lights blinded me, I couldn't see, I tried to stop and couldn't," and other expressions to the same effect.

We especially invite the court's attention to the announcement of Corpus Juris on this subject of res gestae, Vol. 22, Evidence, beginning on page 443 and wish to state that in our opinion it affords the most lucid and clear-cut statement of the law of the res gestae of any subject it has been our pleasure to examine in all the four sides of Corpus Juris. For instance, sec. 543 on page 451 lays down the rule of the time elements and under the doctrine announced by that section the competency of this man Jones' spontaneous utterances in the car and as he was brought up the bank fatally injured, and as the witnesses offered, including his physician, show that he was dazed and so badly stunned that he grew worse and not better until the end; and as stated by his physician, he was in no mind to plan any sort of a statement to his advantage.

22 C. J. 462, secs. 548, 549 and 551.

All the authorities cited above reveal that the courts have held and are more strongly tending to be influenced by the necessity of such proof to meet the ends of justice, and on this point we are unable to see how a res gestae statement could have more meritorious consideration at the hands of the court.

Ala. Great Southern R. Co. v. Shannon, 68 So. 165; 3 Wigmore on Evidence.

The court erred in sustaining a general objection to the testimony of the witnesses, Leonard Harris, Charley Epperson, M. F. Marlar, and Lloyd Jones as to their knowledge from actual contact and experience of the glaring and blinding effect of these bus lights to one facing them.

22 C. J., Evidence, page 527, sec. 611; Dyer v. Hobert, 117 So. 244; Dillon v. State, 58 Miss. 368; Dixon v. State, 143 So. 855; Southern Ry. Co. v. Crowder, 33 So. 335; Alabama Power Co. v. Edwards, 121 So. 543; Alabama Great So. R. Co. v. Linn, 15 So. 508; 10 R. C. L., Evidence, sec. 131, page 958.

The evidence of these witnesses was admissible for an entirely different reason and for a reason well recognized by the law, to show the system and method employed by this driver with this bus on the highway to the knowledge of the decedent which throws light on his natural reaction to the bus when he looked forward and realized it appeared to be coming, and to sustain this view we cite the following authorities, to-wit:

S. H. Kress & Co. v. Markling, 77 So. 858; Crawford v. City of Meridian, 154 So. 888; N. O. & N. E. R. Co. v. Brooks, 165 So. 804; 2 Restatement, Law of Torts, sec. 303; 22 C. J., Evidence, 748, sec. 837.

The evidence of the above four witnesses should not have been excluded for general objections for still another reason which is founded upon principles well established by our courts, that these different observations of these witnesses were admissible to illustrate the blinding effect on decedent under the theory of demonstrative evidence.

22 C. J., Evidence, 565, sec. 667; Dyer v. Hobert, 117 So. 244; Amsbary v. Gray's Harbor Ry. & Light Co., 8 A. L. R. 1; State of Missouri v. Allison, 85 A. L. R. 471.

T. A. Clark, of Iuka, and Chandler, Shepherd, Owen & Heiskell, of Memphis, Tenn., for appellee.

A motor vehicle parked on the highway for repairs or for other temporary purposes, must keep its lights burning as a notice to other users of the highway of the presence of the parked vehicle.

Frazier v. Hull, 157 Miss. 303, 127 So. 775.

An automobile driver must at all times drive his automobile in such a way as to be able to guide his car around the curves, down the descents, over the bridges and levees, and around the obstructions which may be in its path, and the exercise of due care requires that his automobile be kept under such control that he may stop within that portion of the highway lighted by his own lights.

Section 5571, Code of 1930; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Terry v. Smiley, 161 Miss. 31, 133 So. 662; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 841; Frazier v. Hull, 157 Miss. 303, 127 So. 775; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522.

The law of the road requiring a traveler to keep to the right applies only to the meeting or passing of traffic. Provided there are no other teams or vehicles having occasion or desire to pass, one may use any part of the road which may suit his taste or convenience. One need not go to the extreme right, but is bound to leave merely sufficient room for the other vehicle.

29 C. J. 651, sec. 415; Young v. Cowden, 98 Tenn. 577.

This rule has not been changed by the Mississippi statute which merely provides that the operator of a motor vehicle "shall reasonably turn to the right of the center of the highway . . . so as to pass without interference."

Section 5574, Code of 1930; Crystal v. State, 147 Miss. 40, 112 So. 687; Priestly v. Hays, 147 Miss. 843, 112 So. 788.

To be actionable, the negligence complained of must be a proximate cause of the injury.

Hammond v. Morris, 156 Miss. 802, 126 So. 906; Pounders v. Day, 151 Miss. 436, 118 So. 298; Rowlands v. Morphis, 130 So. 906, 158 Miss. 662; Universal Tr. L. Co. v. Taylor, 174 Miss. 353, 164 So. 2.

The Mississippi Legislature has seen fit to regulate only the minimum amount of light required, and has not seen fit to limit the maximum amount allowed, thus leaving a discretion in the operator of the automobile to use more than the statutory minimum of light.

Section 5575, Code of 1930.

Testimony that lights upon defendant's motor vehicle were blinding or glaring, or were brighter than usual, is no evidence of negligence on the part of the defendant, as such testimony is not proof that the lights were in violation of the statute.

Carriveau v. Vatapek, 235 N.W. 445; Petteys v. Leith, 252 N.W. 18.

Whether a statement or act is or is not a part of the res gestae depends wholly upon the facts of each case; declarations are not admissible if they amount to no more than a mere narrative of a past occurrence. When the declaration is a verbal act, illustrating, explaining or interpreting other parts of the transaction of which it is itself a part, it is competent and admissible as part of the res gestae; but when it is merely a history, or part of a history, of a completed past affair, it is incompetent and inadmissible.

Jones on Evidence, sec. 345; Mayes v. State, 64 Miss. 329, 1 So. 733; Meek v. Perry, 36 Miss. 190; Vicksburg v. O'Brien, 119 U.S. 99, 30 L.Ed. 299; Woods v. Franklin, 151 Miss. 635, 118 So. 450; G. M. & N. v. Hudson, 142 Miss. 542, 107 So. 369; V. & M. v. McGowan, 62 Miss. 682, 52 Am. Rep. 205.

Declarations of a person injured when no one is present are not evidence to show the manner in which the injury occurred, however nearly contemporaneous with the occurrence.

10 R C. L., Evidence, sec. 170; State v. Davidson, 30 Vt. 377, 73 Am. Dec. 312; State v....