Smith v. Walton

• Decision Date: 02 January 1973
• Docket Number: No. 46829,46829
• Parties: Ruby Lee SMITH v. Jerry WALTON.
• Court: Mississippi Supreme Court

Page 409

271 So.2d 409

Ruby Lee SMITH v. Jerry WALTON.

No. 46829.

Supreme Court of Mississippi.

Jan. 2, 1973.

Brunini, Everett, Grantham & Quin, Robert A. Weems, Vicksburg, for appellants.

Ramsey, Bodron & Thames, P. Kelly Loyacono, Vicksburg, for appellee.

ROBERTSON, Justice:

Ruby Lee Smith and her children brought suit against Jerry Walton in the Circuit Court of Warren County, Mississippi, for the wrongful death of George Smith, her husband and the father of her children. The jury returned a verdict for the defendant, Jerry Walton. Hence this appeal.

About 7:00 P.M. on the night of February 2, 1970, after it had been raining and snowing during the day, George Smith was walking north on the right shoulder of U.S. Highway 61 about 2 1/2 miles north of Vicksburg, Mississippi. Jerry Walton, after noting Smith walking rather close to the pavement with his back to him, continued to drive north on U.S. Highway 61 at about 30 to 35 miles per hour. Walton testified that there was no other traffic on the highway and he continued to drive close to the east edge of the pavement. Walton also testified that he first saw Smith when he was about a block and a half away but did not sound his horn and really didn't pay too much attention to him. When Walton was about half a carlength back of him, Smith suddenly stepped or jumped over on the highway. Walton tried to swerve to the left but the right corner of his car hit Smith. Smith was thrown up on the hood of the car; his head and arm hit the windshield and broke it, and his body fell off of the right side of the car. Walton estimated that Smith was about a foot or a foot and a half on the highway when his car struck Smith.

Appellants assign as error:

1. The trial court erred in refusing to direct a verdict in favor of the Plaintiffs and in refusing to grant Plaintiffs' motion for a judgment notwithstanding the verdict because the actions and conduct of the Defendant as shown by the Defendant's own testimony constitutes negligence as a matter of law.

2. The trial court erred in giving the following instructions for the Defendant, to-wit:

(A) The Court instructs the jury for the Defendant, Jerry Walton, that the laws of the State of Mississippi require the Plaintiff, when walking along a public highway, at a place such as where the accident occurred, to walk on his left-hand side thereof, or in such a way as to face the direction from which an automobile using that side of the road would approach him. The Court further instructs the jury that the laws of the State of Mississippi require that the Plaintiff should keep a reasonable and proper lookout for traffic using the highways of the State of Mississippi and that at the point on U.S. Highway 61 North, where the collision occurred, the Plaintiff was required by statute to yield the right-of-way to oncoming traffic and if you believe from the evidence in this case that the failure of Mr. George Smith, deceased, to walk on the correct side of the highway, and his failure to keep a proper lookout, if any, and his stepping into the highway, if such were the case, were the sole proximate causes of this accident, then you must find for the Defendant, Jerry Walton.

(B) The Court instructs the jury for the Defendant that where the driver of an automobile is driving his automobile at a reasonable speed and has the automobile under reasonable control and is keeping a reasonable lookout, then no liability for negligence attaches for injury to a pedestrian who unexpectedly walks, steps or hurries either in front of or into the front of Defendant's automobile, when so close thereto that the driver of the automobile, by the exercise of reasonable care, is unable to avoid a collision, and in this case, if you believe from the evidence, that Mr. George Smith was walking along the shoulder of the East side of Highway 61 North and that Jerry Walton was driving his automobile at a reasonable rate of speed and had his automobile under reasonable control, and that when he was at a position near Mr. Smith, that Mr. Smith walked, stepped or hurried into the path of his automobile or into some portion thereof, and that the Defendant, Jerry Walton, then acted as a reasonably prudent person would have acted in trying to avoid the accident, but, despite his efforts there was a collision between his car and Mr. Smith, then it will be your duty to return a verdict for the Defendant, even though Mr. Smith died of the injuries received as a result of the collision with the Walton automobile.

(C) The Court instructs the jury for the Defendant, that the driver of an automobile is not required by law to anticipate that a pedestrian, that is one walking on or near a street or highway, and in a place of safety, will leave that place of safety and get into a place of danger, until the pedestrian makes some demonstration or movement reasonably indicating that he will leave his place of safety and proceed into a place of danger, and if you believe from the evidence that Mr. Smith was walking on the East side of Highway 61 North and that said place was a place of safety, and that the Defendant, Jerry Walton, was keeping a reasonable and alert lookout as he drove along said highway, then there was no duty placed on the Defendant, Jerry Walton, to anticipate that Mr. George Smith, deceased, would leave his place of safety and move out into the path of Defendant's automobile, and if you so believe that Mr. George Smith did walk or hurry unexpectedly and suddenly into the path of said automobile, then the Defendant, Jerry Walton, was not guilty of any negligence in not anticipating that the deceased would leave his position and move into the path Defendant's automobile.

(D) The Court instructs the jury for the Defendant that a pedestrian is prohibited from suddenly leaving a curb, shoulder or other place of safety and walking or running into the path of a vehicle which is so close that it is impossible for the driver to yield, and if you find from the evidence in this case that the Plaintiff did so suddenly leave the curb, shoulder or other place of safety and walk or run into the path of the Defendant's vehicle at a time when it was impossible for the Defendant to yield; and if you further find that such action was the direct and proximate cause of the Plaintiff's injuries, then you shall find for the Defendant, Jerry Walton.

(E) The Court instructs the jury for the Defendant that where the driver of an automobile is driving at a reasonable speed and has the automobile under reasonable control and is keeping a reasonable lookout, then no liability for negligence attaches for an injury to a pedestrian who unexpectedly darts, dashes, hurries, or walks either in front of or into the front of the automobile when the pedestrian is so close to the automobile, that the driver who exercises reasonable care, is unable to avoid a collision.

The trial court was correct in refusing to direct a verdict for the appellants because 'All questions of negligence and contributory negligence' are for the jury to decide under proper instructions of the court as to the applicable principles of law involved. Section 1455, Mississippi Code 1942 Annotated (1956).

Instruction (A) is clearly erroneous and the granting of this instruction constituted fatal error. It was formerly the law of Mississippi that a pedestrian walk on the lefthand side of a highway facing oncoming traffic, Section 5574, Mississippi Code of 1930 Annotated, but that section was repealed in 1938, Section 159, Chapter 200, General Law of Mississippi of 1938.

On Layton v. Cook, 248 Miss. 690, 160 So.2d 685 (1964) this Court said:

'In the absence of a statute to the contrary, a pedestrian has the right to use and travel upon any portion of a public highway at any time of the day or night, 'and his rights and the rights of one operating a vehicle thereupon are mutual, reciprocal, and equal.' The operator of a motor vehicle owes to pedestrians walking along the highway the duty to exercise reasonable or ordinary care to avoid injuring them.' 248 Miss. at 696, 160 So.2d at 687.

It is true that Section 8202(a), Mississippi Code 1942 Annotated (1956), provides:

'Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.'

but Section 8202(d) also states the law to be:

'Notwithstanding the provisions of this section every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.' (Emphasis added.)

Section 8250, Mississippi Code 1942 Annotated (1956), aslo provides:

'The driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn but shall not otherwise use such horn when upon a highway.' (Emphasis added.)

Instruction (B) does not embody either the 'when necessary' or 'when reasonably necessary' test to whether the horn should have been sounded and Smith warned of the approach of Walton's car. In this respect this instruction was in conflict with Instruction No. 1 for plaintiffs which correctly stated this test. Instruction (B) was faulty and should not have been approved.

It was a question for the jury to decide upon proper instructions whether or not it was reasonably necessary for Walton, acting as a reasonable and prudent man, to sound his horn when it was raining and snowing and Smith was walking along the shoulder of the road with his back to approaching traffic and apparently unaware of the approach of Walton's automobile.

Instruction (C) is subject to the same criticism as Instruction (B). It does not submit for the jury's consideration whether it was necessary for Walton to sound his horn...