Solomon v. Continental Baking Co

• Decision Date: 01 April 1935
• Docket Number: 31617
• Citation: 172 Miss. 388,160 So. 732
• Court: Mississippi Supreme Court
• Parties: SOLOMON et al. v. CONTINENTAL BAKING CO

160 So. 732

172 Miss. 388

SOLOMON et al. v. CONTINENTAL BAKING CO

No. 31617

Supreme Court of Mississippi

April 1, 1935

Division A

Suggestion Of Error Overruled, April 29, 1935.

APPEAL from the circuit court of Coahoma county HON. WM. A. ALCORN Judge.

Suit by Annie P. Solomon and others against the Continental Baking Company. Judgment for the defendant, and the plaintiffs appeal. Reversed and remanded.

Reversed and remanded.

Edward W. Smith and Pat D. Holcomb, both of Clarksdale, for appellants.

The court was in error in peremptorily instructing the jury to return a verdict for the defendant.

Sections 505 and 567, Code of 1930.

Where the evidence would be the same, and the merits of the case were before the court, it was improper to refuse the motion for amendments, and grant a peremptory instruction.

Kelly v. Continental Casualty Co., 87 Miss. 40; Code of 1892, sec. 717; Jones v. Clemmer, 98 Miss. 508, 54 So. 4; Greenwood Grocery Co. v. Bennett, 101 Miss. 573; Merchants Bank v. Smith, 107 Miss. 105, 64 So. 970; Sections 505, 514, 532, 543, 544 and 564, Code of 1930; Lewis v. State, 65 Miss. 468; Rice v. Patterson, 92 Miss. 666, 40 So. 255.

The plea of nonjoinder was a nullity, was not before the court, and required no response.

Sections 543 and 544, Code of 1930.

The court erred in holding that the General Exchange Insurance Corporation, assignee, was unauthorized by section 505, Code of 1930, to begin, prosecute and continue this cause in the name of the plaintiffs, assignors.

Section 505, Code of 1930; Bolivar Compress Co. v. Mallett, 139 Miss. 213; Chapter 134, Laws of 1916, Hemingway's Code, sec. 497; Section 564, Code of 1930; Kelly v. Casualty Co., 87 Miss. 440, 40 So. 1; Ridgeway v. Jones, 122 Miss. 624, 84 So. 692.

The lower court erred in sustaining pleas in abatement filed with the general issue.

Lewis v. State, 65 Miss. 468; Rice v. Patterson, 92 Miss. 666; Sections 505 and 564, Code of 1930.

It was entirely proper for the appellant to state the facts constituting the physical surroundings as of the time and place the accident and impact occurred, for it was an attendant circumstance contributing to the cause of the accident and part of the res gestae.

22 C. J., page 470, sec. 559; Standard Oil Co. v. Johnson, 299 F. 93, 97; 10 R. C. L., page 967, sec. 158, and page 976, sec. 159; Missouri State Life Ins. Co. v. Makiver, 4 F.2d 185; Roach v. G. N. R. Co., 158 N.W. 232, 61 L.Ed. 534; Thomas St. Clark v. U.S. 31 L.Ed. 936; DuBois v. Luthmer et al., 126 N.W. 147, 149; Standard Oil Co. v. Johnson, 299 F. 93, 97; Hunter v. State, 40 N. J. L. 496, 536; 3 Wigmore Evidence (3 Ed.) 1745; Railroad Co. v. Stinson, 75 Miss. 453, 456.

Brewer & Montgomery and Chas. A. Sisson, all of Clarksdale, for appellee.

A driver of an automobile must drive at such a speed that he is able to stop within the distance clearly illuminated by the headlights of his automobile.

Frazier v. Hull, 157 Miss. 303, 127 So. 775; Whitley v. Holmes, 164 Miss. 423, 144 So. 48; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Baden v. Globe Indemnity Co., 146 So. 784; 2 R. C. L. 1191.

There was no evidence from which a jury could find that the truck was parked at the time of the accident.

The only inference that the rear light on the truck was not burning was the testimony of Cecil Solomon to the effect that if there had been a rear light, he would have seen it. As large as the truck was, he didn't see it until he was within a car's length of it.

A driver of an automobile when so blinded by the lights of an approaching automobile that he cannot see a sufficient distance ahead to be able to stop within such illuminated distance at the rate of speed he is traveling, should immediately bring his car within such speed that he can stop within the distance that he can see.

Terry v. Smylie, 161 Miss. 31, 133 So. 662; Safety Tire Service, Inc., v. Murov, 140 So. 879; Ruth v. Vroon, 245 Mich. 88, 222 N.W. 155; Hatzakorzian v. Rucker-Fuller Desk Co., 239 P. 709; 1 Blashfield Cyc. Automobile Law, page 354.

The driver of an automobile must keep his machine constantly under control, must continue on the alert for pedestrians and others using the streets and highways, and must anticipate their presence.

Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Hatzakorzian v. Rucker-Fuller Desk Co., 239 P. 709; 2 R. C. L., page 1184.

Section 5569, Code of 1930, provides that no one shall operate a motor vehicle at a greater rate of speed than is reasonable and proper, having due regard to the traffic and use of the highway.

Terry v. Smylie, 161 Miss. 31, 133 So. 662; Safety Tire Service, Inc., v. Murov, 140 So. 879; Hatzakorzian v. Rucker-Fuller Desk Co., 239 P. 709; Ruth v. Vroon, 245 Mich. 881, 222 N.W. 155.

OPINION

Smith, C. J.

The appellants sued the appellee for damages alleged to have been sustained by them because of the negligence of the appellee's servant. The court below directed a verdict for the appellee.

The declaration alleges that an automobile owned by some of the appellants, while being driven by one of them at night, ran into the rear of an automobile truck owned by the appellee, which was without a rear red light and was parked in the road, on the side thereof on which the appellants' automobile was being properly driven.

In support of its directed verdict, the appellee says (1) that the evidence disclosed no negligence on the part of the driver of its truck, but, if mistaken in this, (2) that the negligence of its driver was not the proximate cause of the collision, but that, on the contrary, its sole, proximate cause was the negligence of the driver of the appellants' automobile.

The negligence charged against the appellants' driver is that he violated several of the "laws of the road," without which the appellee says the collision would not have occurred.

It may be, as to which we express no opinion, that the appellants' evidence failed to disclose that the truck was parked in the road at the time of the collision, but it is clear that whether this truck was being driven without a rear red light, as required by section 5575, Code of 1930 was for the determination of the jury. According to the evidence for the appellee, the truck was equipped with such a light, but according to that of the appellants' driver, it was not so equipped, and had it been, he would have seen the light and avoided the collision. If the truck was being driven without such a light, the jury would be warranted in finding that the negligence in so doing was a legal and proximate cause of the collision, unless the appellee is correct in saying that the appellants' driver was guilty of such negligence as superseded the negligence of the appellee's driver, and became the sole legal and proximate cause of the...