Smith v. Dillon Cab Co.

• Decision Date: 26 November 1962
• Docket Number: No. 42462,42462
• Citation: 146 So.2d 879,245 Miss. 198
• Parties: Geneva SMITH v. DILLON CAB COMPANY, Incorporated.
• Court: Mississippi Supreme Court

Page 879

146 So.2d 879

245 Miss. 198

Geneva SMITH v. DILLON CAB COMPANY, Incorporated.

No. 42462.

Supreme Court of Mississippi.

Nov. 26, 1962.

Johnson & Johnson, Natchez, for appellant.

William F. Riley, Natchez, Satterfield, Shell, Williams & Buford, Jackson, for appellee.

KYLE, Justice.

The appellant, Geneva Smith, filed suit in the Circuit Court of Adams County against Dillon Cab Company, Incorporated, for damages for personal injuries alleged to have been sustained by her while riding as a passenger for hire in one of the appellee's taxicabs. The case came on for hearing before a jury at the November 1961 term of the court, and at the conclusion of the evidence offered on behalf of the plaintiff the court sustained a motion made by the defendant to exclude the evidence offered on behalf of the plaintiff and directed a verdict for the defendant, and from that judgment the appellant has prosecuted this appeal.

In her amended declaration the plaintiff alleged that, on June 25, 1960, the plaintiff was riding as a passenger for hire in one of the defendant's taxicabs, and while the plaintiff was a passenger in the taxicab, the driver of the taxicab, who was the defendant's servant, parked the taxicab at an angle on Beech Street in the City of Natchez, headed west, blocking said roadway and leaving the plaintiff in a perilous position while he deposited groceries for another fare-paying passenger; and that while the cab was parked in that position, with the plaintiff seated on the back seat of the cab, the cab was hit from the side by a United States mail truck being driven by Henry Foggo. The plaintiff further alleged that as a result of the collision the plaintiff suffered bruises, contusions and permanent bodily injuries in the sacroiliac area and the cervical and lumbar spine area and a severe whiplash injury to her neck, and other injuries described in the declaration.

The plaintiff further alleged that the driver of the taxicab owed a duty to the plaintiff as a paying-passenger for hire not to leave her in a perilous position in the middle of the street with the cab unattended; and that he breached that duty by leaving his cab unattended in a perilous position with the plaintiff seated therein, which constituted negligence; and that the negligence thus alleged was the proximate cause of the collision above described and the direct and proximate cause of the plaintiff's injuries. The plaintiff demanded judgment for a sum of $7,500 for pain and suffering, medical expenses, loss of wages, and permanent injury to her body.

The defendant Dillon Cab Company, in its answer, denied that its cab driver parked the taxicab at an angle on Beech Street, and further denied that the taxicab was so parked as to block the roadway. The defendant alleged in its answer that there was ample space for other vehicles traveling on Beech Street to pass around the taxicab while it was so parked. The defendant denied that its cab driver left the plaintiff in a perilous position, but admitted that while the taxicab was parked in the position stated above, and while the plaintiff was occupying the right rear seat, the taxicab was hit by a United States mail truck being deiven by Henry J. Foggo. The defendant alleged that the driver of the mail truck was negligent in failing to have his vehicle under reasonable and proper control, and in failing to maintain a reasonable and proper lookout, and that the negligence of the driver of the mail truck was the sole proximate cause of the collision. The defendant denied that its cab driver was negligent in any manner or that his negligence caused or contributed to the collision.

The plaintiff testified that she was a colored female 43 years of age; that on June 15, 1960, she called a Dillon cab from a grocery store; and that after she got in the cab the driver carried another passenger home before taking the plaintiff to her destination; that when the cab driver got to the home of the other passenger he helped her carry her groceries into the house and left the plaintiff sitting in the back seat of the cab; that the cab was parked on the left side of the street with the rear of the cab toward the center line, and that while the cab was so parked it was hit by the mail truck. The plaintiff testified that the driver of the cab was not in the cab at the time the accident occurred; that he was in the other passenger's house, and did not know there had been an accident until he returned to his cab about five minutes after he went into the house.

Dr. Edwin M. Butler testified that he treated the plaintiff on June 27 for injuries which she had received two days prior to that date, when she was a passenger in a taxicab which was struck from the rear by a second vehicle. He made x-rays, which revealed no fracture of a bond. His conclusion was that she had sustained a whiplash injury of the neck and lower spine involving muscles and ligaments.

Henry Foggo, the driver of the mail truck, testified that he was delivering mail on Beech Street about 10 o'clock A. M.; that the taxicab was parked in front of No. 4, Beech Street, on the south side of the street heading west; and as he started off from the mail box at No. 2, Beech Street, he 'clipped' the back of the taxicab. Foggo testified that the taxicab was parked on the left side of the street, and as he undertook to drive around the cab he struck the rear of the cab; that the street was not more than 16 feet wide at the most; and that the right-hand fender...