Snyder v. Campbell

• Decision Date: 13 December 1926
• Docket Number: 26000
• Court: Mississippi Supreme Court
• Parties: SNYDER et ux v. CAMPBELL. [*]

110 So. 678

145 Miss. 287

SNYDER et ux v. CAMPBELL. ^[*]

No. 26000

Supreme Court of Mississippi

December 13, 1926

Division A

1 AUTOMOBILES. Negligence in driving automobile fifteen miles per hour at time of striking pedestrian crossing street held for jury (Hemingway's Code, sections 5775, 5788).

Under Hemingway's Code, section 5775, establishing maximum speed of motor vehicles as fifteen miles per hour, automobile driver's negligence in driving on street at speed of fifteen miles per hour at time of striking pedestrian crossing street between Intersections, is for jury, whether or not ordinance forbidding speed at greater rate than twelve miles per hour was repealed by virtue of section 5788.

2 AUTOMOBILES. Regulations of use of streets by pedestrians reasonable and necessary because of automobile traffic.

Regulations designating points for crossing streets and controlling pedestrians' movements at points where traffic is heavy which before automobile's advent would have been arbitrary and unreasonable, may now, by reason of changed and complex conditions be entirely reasonable and necessary.

3. AUTOMOBILES. Ordinance regulating pedestrians' use of streets held reasonable.

City ordinance regulating places where pedestrians were permitted to cross streets held proper and reasonable exercise of police power.

4. NEGLIGENCE. Pedestrian's recovery for injuries by automobile should be reduced in proportion to negligence in crossing street. Recovery by pedestrian for injuries when struck by automobile should be reduced in proportion to pedestrian's negligence in attempting to cross street between corners, in violation of ordinance.

5. AUTOMOBILES. Pedestrian's negligence does not relieve automobile driver from exercising reasonable care.

Pedestrian's negligence in attempting to cross street does not relieve automobile driver of duty of exercising reasonable care and diligence to avoid injury.

6. AUTOMOBILES. Driver must keep automobile under control and be on alert for pedestrians.

Automobile driver must keep his machine constantly under control, and must continue on alert for pedestrians or others on streets.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Jones county, Second district, HON. R. S. HALL, Judge.

Action by P. G. Campbell against George Snyder and wife. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Judgment reversed and cause remanded.

Welch & Cooper and Roy P. Nobles, for appellants.

Appellee says the unlawful Speed caused the injury. He bases his cause of action thereon. There is no other ground of negligence alleged. Appellee offered in evidence an ordinance of the city of Laurel. It is urged that "on a tangent" means a street and that the speed here is shown to have been fifteen miles per hour. Assume that "on a tangent" means a street and that the ordinance was operative at the time, facts we will not concede except for argument; still we say that the speed had nothing to do with the accident.

Mrs. Snyder never saw appellee until he fell into the side of the car. Appellee was never in front of her. The excessive speed here, if there was such, saved the life of appellee rather than contributed to his injury. To be negligence, as to the party suing, the excessive speed must be the proximate cause of the injury. Ry. Co. v. Carter, 77 Miss. 516, 27 So. 993; Clisby v. R. R. Co., 78 Miss. 937, 29 So. 913. The greatest injustice might follow from holding the excessive speed per se negligence whether the proximate cause of the injury or not.

It is not disputed that Mrs. Snyder did not see appellee. It was raining. Her windshield was wet. And had she seen him and had she been going twelve miles per hour, still she could not have prevented the accident. Appellee stepped out from between two cars. And he was endeavoring to cross at a point in direct violation of an ordinance of the city.

On the evidence the injuries received by appellee were the result of an accident and not due to the negligence of appellants and certainly the negligence charged did not cause it. There should have been a directed verdict because it appears that the speed of fifteen miles per hour was not unlawful but in accord with the law.

Even if a speed in excess of twelve miles per hour was unlawful, it was because of the ordinance of the city of Laurel. Why should "on a tangent" be construed as meaning a "street" or an "avenue," we do not see. In every other part of the ordinance the words "street" or "avenue" are used.

We say that the net effect of the Motor Vehicle Act, chapter 116, Laws of 1916, was to repeal the above ordinance in all parts wherein the ordinance was in conflict with the act. The evident purpose of this statute was to insure uniformity throughout the state, doing this by taking away from the municipalities the power to act on the subjects dealt with.

On the other hand, the ordinance forbidding "jay walking" is an exercise of the police power of the city and is as reasonable in its nature and purpose as the ordinance pronounced valid by this court in Watson v. Greenville, 86 So. 450.

This cause should be reversed.

Jeff Collins, for appellee.

Appellants argue that the speed of the car had nothing to do with the accident; but it was as much the duty of Mrs. Snyder to see appellee undertaking to cross the street as it was the duty of the appellee to see Mrs. Snyder coming down the street. Mrs. Snyder could have stopped her car when she was eighteen feet away by applying her brakes, according to her own testimony.

Appellants argue that appellee would have fallen in front of the car and would have been run over had appellant been running at the rate of twelve miles per hour, but they seem to lose sight of the fact that appellants owed appellee the duty to check the speed of the car.

The testimony clearly shows that the speed of the car was the proximate cause of the injury. Appellant, Mrs. Snyder, is undertaking to excuse her rate of speed at the time that she hit appellee by saying that she did not see him because her windshield was wet. We do not understand how a railroad company could excuse itself for running its trains through a municipality at a greater rate of speed than six miles per hour and injuring some one by saying that the glass in front of the engineer was wet and blurred so that he could not tell when he got into the corporate limits or the six mile limit. If her windshield was wet so that she could not see anyone approaching from the right side, then it was certainly her duty to slacken her speed so as to take care of any contingency that might happen on that account.

Appellant argues that the city ordinance limiting the speed of automobiles at this particular place to twelve miles per hour was repealed by the Motor Vehicle Act, section 5775, Hemingway's Code, chapter 116, Laws of 1916.

If the court will notice the language of this statute and this ordinance, there is no conflict. The statute says "at a greater rate than is reasonable and proper." The city authorities under this ordinance decide that twelve miles per hour is "reasonable and proper" at this place or over twelve miles an hour is unreasonable and improper." The statute fixes the maximum limit only. So it would certainly be within the legal and constitutional rights of the city authorities to fix the rate of speed in certain places at twelve miles per hour, or, as they say in this ordinance "not to exceed eight miles per hour" at certain places. This contention arose out of Adler v. Martin (Ala.), 58 So. 597. We also call the court's attention to Ivy v. Marx, 87 So. (Ala.), 813, as it is exactly in point. After reviewing this case, it is easy enough to see that the instructions refused by the court incorrectly state the law. It would not be negligence per se for a pedestrian to undertake to cross at any other place than the place indicated by the city ordinance; and if the pedestrian uses due diligence in so undertaking to cross the street, he is not guilty of negligence. Adler v. Martin, 59 So. 604.

The case should be affirmed.

Argued orally by Ellis B. Cooper, for appellant, and Jeff Collins, for appellee.

OPINION

COOK, J.

The appellee, P. G. Campbell, brought this action in the circuit court of Jones county for damages for personal injuries alleged to have been sustained by reason of being struck by an automobile which was being negligently and carelessly driven by the appellant, Mrs. George Snyder, on the streets of the city of Laurel, Miss. There was a verdict and judgment against both Mr. and Mrs. George Snyder for the sum of one thousand dollars and from this judgment this appeal was prosecuted.

To the declaration the appellants pleaded the general issue, with notice thereunder that they would offer proof to show that the appellee, at the time of his injury, was endeavoring to cross Magnolia street between corners or street intersections, in violation of a city ordinance requiring all pedestrians to cross certain streets at the street intersections, or other designated points, which were plainly marked, and that, in attempting to cross Magnolia street in violation of said ordinance, and at a place other than one designated in said ordinance and marked off, the plaintiff emerged from behind a car parked on the curb without noticing the approaching cars or traffic, and was guilty of gross negligence, which contributed to his injury.

From the evidence it appears that Magnolia street in the city of Laurel runs north and south. Oak street crosses Magnolia street, and one block south of Oak street Central avenue crosses Magnolia street. In the block fronting on Magnolia street and between Oak street on the north and Central avenue on the south is...