Spell v. Ruff, 45121
| Decision Date | 23 December 1968 |
| Docket Number | No. 45121,45121 |
| Citation | 217 So.2d 7 |
| Parties | Mr. and Mrs. L. O. SPELL et al. v. M. A. RUFF, Jr. |
| Court | Mississippi Supreme Court |
Barry H. Powell, Waller, Pritchard & Fox, Jackson, for appellants.
Lipscomb, Barksdale, Steen & Caraway, Jackson, for appellee.
The action out of which this appeal arose was begun against appellee, M. A. Ruff, Jr., in the Circuit Court of Hinds County by appellants, who are the heirs at law of Ricky Leon Spell, a fourteen year old boy, for the recovery of damages for his alleged wrongful death in an automobile-motorcycle collision, and was brought under the provisions of Mississippi Code 1942 Annotated section 1453 (1956).
The case was tried and submitted to a jury which returned a verdict for the defendant-appellee. From the judgment entered pursuant to that vedict, this appeal has been prosecuted.
The collision which resulted in the death of Ricky Leon Spell occurred near midday on July 26, 1966, a hot, dry day, at the intersection of Kickapoo Road and Pinehaven Road, about eight or nine miles northwest of the City of Jackson. Kickapoo runs east and west and Pinehaven north and south. Both Kickapoo and Pinehaven are paved blacktop roads twenty-one feet in width and at this point approximately level and straight. A stop sign requires traffic proceeding south on Pinehaven to stop before entering the intersection. There is no such sign, and no such requirement for traffic, on Kickapoo Road. The speed limit on Kickapoo Road is fifty miles per hour.
Upon the occasion in question Ruff was driving a 1961 Ford automobile west on Kickapoo Road and young Spell and another boy of about the same age were riding tandem on a motorcycle and proceeding south on Pinehaven Road. The record does not disclose which of the two boys was driving the motorcycle.
A collision between Ruff's automobile and the motorcycle occurred in the northwest quadrant of the intersection, as the result of which both Ricky Leon Spell and his companion were killed instantly.
Ruff was the only survivor of the collision and was placed on the stand by appellants as an adverse witness. He testified that he had been driving along Kickapoo Road at a speed of about forty-five and fifty miles per hour and had slowed to a speed of thirty to thirty-five miles per hour as he approached the Pinehaven intersection. He said that he observed the boys as they approached the stop sign on Pinehaven and that it appeared to him that they were stopping there, and in fact, 'they had got slow enough if they just put their foot down they could have been stopped.'
Ruff proceeded to enter the intersection, traveling about thirty to thirty-five miles per hour, and as he did so, according to Ruff's testimony, the boys on the motorcycle suddenly 'gunned right out in front of me,' 'they shot right out' and the fatal collision ensued.
Ruff's testimony was to the effect that the motorcycle had been 'gunned' out into the intersection after he had already entered and had proceeded some sixteen or eighteen feet into it. He stated that the boys had 'shot right out' so suddenly, and at a time when he weas so close, that he could do nothing more than attempt to 'pull the car to the left' in an unsuccessful effort to miss them. After the impact his automobile continued down, across and off the road on Ruff's left.
Appellants sought to contradict Ruff through the testimony of a witness who had arrived at the scene some time after the collision and who testified that he had observed skid marks on Kickapoo Road which he attributed to Ruff's automobile. Ruff had testified that he had not had time to apply his brakes. The witness had made no measurements on the day of the collision, and his testimony at the trial was based upon measurements which he made fifteen months afterward. Upon cross-examination he was somewhat uncertain as to where the marks he remembered had been, and when shown a photograph of the spot (which had been taken shortly after the collision and on the same day), he admitted that the only skid marks appearing on the pavement seemed to have been made by a dual wheel vehicle.
Another witness, offered by appellants, testified that Ruff had said following the collision that the boys had come to a complete stop at the stop sign (rather than to a virtual stop,) not 'having put their feet down.' This witness, however, stated that Ruff had also told him at the time that the boys had dashed out in front of him.
In this state of the record, appellee moved for a directed verdict, and upon the conclusion of all of the evidence, requested a peremptory instruction. The trial court overruled the motion, refused the instruction and allowed the case to go to the jury which returned a verdict for appellee.
Appellants seek reversal and assign as prejudicial error certain jury instructions granted at the request of appellee.
Appellants' first assignment is to the effect that the use of the word 'privilege' in two instructions referring to the right-of-way enjoyed by vehicles on the through road to proceed through the intersection was fatal error. In support of appellants' argument of this proposition they quote a definition of 'privilege' from Webster's New Collegiate Dictionary (2d ed. 1960):
1. A right or immunity granted as a peculiar advantage or favor; a personal right, esp. derogation of common right. A common right. 2. A grant of a special right or immunity. * * *
Both of the instructions criticized for the use of the word are expressly predicated upon the necessity of a precedent finding by the jury from the evidence that at the time in question Ruff was driving his automobile in a careful, lawful and reasonable manner and that his automobile had entered the intersection of Kickapoo and Pinehaven Roads before or approximately at the same time that the motorcycle had arrived there, and had the effect only of informing the jury that if it so found, Ruff had the privilege of continuing through the intersection.
This Court itself has used the word 'privilege' to describe the right of the driver of a vehicle traveling on a right-of-way street when he arrives at its intersection with a cross street at approximately the same time as a vehicle on the cross street arrives there, and has stated that the vehicle on the right-of-way street has the privilege of...
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