Sternberg Dredging Co. v. Screws

• Decision Date: 30 March 1936
• Docket Number: 32160
• Citation: 175 Miss. 383,166 So. 754
• Court: Mississippi Supreme Court
• Parties: STERNBERG DREDGING CO. et al. v. SCREWS

166 So. 754

175 Miss. 383

STERNBERG DREDGING CO. et al. v. SCREWS

No. 32160

Supreme Court of Mississippi

March 30, 1936

Division A

Suggestion Of Error Overruled, May 11, 1936.

APPEAL from circuit court of Sharkey county HON. E. L. Barns, Judge.

Suit by Miss Lurline Screws against the Sternberg Dredging Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Affirmed.

Fielding L. Wright, of Rolling Fork, and Brunini & Hirsch, of Vicksburg, for appellants.

Undoubtedly it was the duty both of the driver of the truck and the driver of the Chevrolet sedan on this narrow bridge, fifteen feet wide--with a truck seven feet, one and one-half inches in width, and a Chevrolet sedan six feet, six inches in width, and clearance between them of only one foot, four and one-half inches-- to exercise the utmost care and caution on behalf of both of them.

Section 5571, Code of 1930.

Mr. Justice GRIFFITH, speaking for this honorable court, has made it perfectly plain that the one first entering an intersection of a street did have the right of way, but that he had, nevertheless, to exercise, care and caution commensurate with the facts and surrounding conditions to prevent injuring others.

Myers v. Tims, 138 So. 578, 161 Miss. 872.

We find that there is an unbroken iteration and reiteration of the principle for which we contend; that is, that wherever the plaintiff is contributorily negligent, he must suffer the consequences.

A. & V. Ry. v. Davis, 69 Miss. 444; Railroad v. McLeod, 78 Miss. 334; Coccora v. Vicksburg Light & Traction Co., 89 So. 257, 126 Miss. 713; Y. & M. V. R. R. Co. v. Stephens, 96 So. 697; Y. & M. V. R. R. Co. v. Lucken, 102 So. 393, 137 Miss. 572; Weyen v. Weyen, 139 So. 608, 165 Miss. 257; Collins Baking Co. v. Wicker, 142 So. 8, 166 Miss. 264.

The lower court erred in not directing a verdict for the defendants, the appellants here.

We submit that the instruction that was given for Miss Screws, relieving her, under the facts and circumstances of this case, of all duty to look out for her safety, is not the law of this state, as announced by the decisions and should not be the law because it is absolutely unsound. It was for the jury to determine whether or not, under all the facts and circumstances shown in this case, Miss Screws was guilty of contributory negligence, however slight. The appellants were entitled to this defense in the diminution of the damages.

We say under the proof in this case, physical and otherwise, the court should have directed a verdict for the defendants because the sedan ran over on the west half of the bridge and struck the truck of appellant, and this is demonstrated by the testimony and the, physical facts.

Miss. Central Railroad Co. v. Roberts, 160 So. 604; Y. & M. V. R. R. Co,. v. Stephens, 96 So. 697.

A guest in a car cannot render herself hors de combat by simply closing her eyes She was in that fight to do what was required by her under the law. She did not do it and, therefore, it was a question for the jury to say under the circumstances and facts of the case whether or not she was guilty of contributory negligence, and not for the jury to say as a matter of law she was not.

Y. & M. R. R. Co. v. Beasley, 130 So. 499, 158 Miss. 370; Y. & M. V. R. R. Co. v. Lucken, 102 So. 392, 137 Miss. 572.

This court will say undoubtedly it takes judicial knowledge of the fact that one riding thirty-five miles or forty miles an hour, or in excess thereof, on a straight highway, gravelled surface, approaching a narrow bridge, fifteen feet, wide, with signs about, without lessening the speed at all before or on entering the bridge and traversing it one hundred feel, was manifest danger to any one.

Pagenkamp v. Devillez, 80 F.2d 485.

Clements & Clements, of Rolling Fork, for appellee.

The evidence conclusively shows that the defendants are liable in this case and thai the injury happened at the north end of the bridge.

Universal Truck Loading Co. v. Taylor, 164 So. 3.

The jury found the facts against appellant, and this court will net disturb this finding, because the verdict is not only not overwhelmingly, but is not against the weight of the evidence.

The appellee was guilty of no negligence, and the negligence, if any, of the driver of the car in which she was riding could not be imputed to her.

Miss. Central R. R. v. Roberts, 173 Miss. 487, 160 So. 604; R. R. CO. v. Beasley, 158 Miss. 379; Weyen v. Weyen, 139 Se. 609; R. R. Co. v. Lucken, 137 Miss. 572; Cocora v. Light & Traction Co., 126 Miss. 726; Uvalde v. Stovall, Tex. Civ. App. (126); A. J. Campion v. Eakle, 79 Colo. 320; Melican v. Whitlow Const. Co., 278 S.W. 361; Poynter v. Townsend, 160 A. 678.

The car in which appellee was riding being on the bridge first had right of way.

Universal Truck Loading Co. v. Taylor, 164 So. 3.

The form of the judgment is right.

Miss. Central R. R. v. Roberts, 160 So. 606.

If not, statute of jeofails cures it.

Section 600, Code of 1930.

Appellants were not entitled to the refused instructions under the facts of this case.

The appellee was entitled to all given instructions under the facts of this case.

Argued orally by J. B. Brunini, for appellant, and by E. C. Clements and W. H. Clements, for appellee.

OPINION

Cook, J.

Appellee, Miss Lurline Screws, instituted this suit against the Sternberg Dredging Company and Burl Moody, for damages for personal injuries sustained by her in a collision between an automobile in which she was riding as a guest and a truck owned by the said dredging company and driven by the said Moody. She recovered a judgment for one thousand five hundred dollars against both defendants, and from this judgment this appeal was prosecuted.

Appellee was traveling north on United States Highway 61 in an automobile driven by her sixteen year old brother. She was on the rear seat immediately behind the driver. Her sister and a young man were also on the rear seat, while her father, who owned the automobile, and another young man were on the front seat with the driver. Some distance south of Rolling Fork, in Sharkey county, there is a narrow bridge one hundred twenty-eight feet and two inches long, which has a clearance of fifteen feet and one or two inches between the guard rails. The road north and south of this bridge is straight for a long distance, and several feet wider than the bridge, and the floor of the bridge is covered with gravel. The collision occurred at a point near the north end of the bridge, and the automobile was knocked or plunged through the east railing or banister, and landed bottom up in the creek over which the bridge passed. The northern twenty-two, feet of the east railing was torn down, while the truck scraped the west rail and broke it at a point sixteen feet from the north end of the bridge.

The testimony as to the movement and the exact location of the automobile and the truck immediately before and at the time of the collision is conflicting. Three of the occupants of the automobile testified that they were traveling north at a speed of thirty-five miles per hour; that when the automobile in which they were riding entered the south end of the bridge the truck was about one hundred feet north of the north end of the bridge and was traveling south at a speed of about forty miles per hour; that it continued onto the bridge without slackening its speed; that the right wheels of the truck were from one to two feet from the west guard rail; and that it so obstructed the road that it was impossible to avoid a collision, although the driver of the automobile pulled as close to the east rail as possible.

The driver of the truck testified that the truck entered the bridge first; that when it entered the north end of the bridge the automobile in which appellant was riding was twenty-five or thirty feet south of the south end of the bridge and was approaching it at the rate of fortyfive or fifty miles per hour; that the automobile entered and continued over the bridge without slackening its speed; that when he realized that the automobile was not slowing down he pulled the truck over against the west rail and stopped there; and that the automobile came on swinging, or swerving, in the loose gravel, and struck the truck at a point about where the front fender joins the running board. The only other occupant of the truck corroborated the driver of the truck in all respects, except as to the movement of the truck at the moment of the collision. As to this, the witness testified that the truck was almost, but not entirely, stopped at the time of the collision, and that it rolled a, short distance after the collision.

Appellee testified that about five minutes before the collision, at a, time when they were traveling at a spec& of thirty-five miles an hour and there was no appearance of danger, she, being tired, removed her hat, rested her head on the back of the seat, and closed her eyes, and remained in that position until the collision occurred. She further testified that she was not familiar with the road; that she had no knowledge of the fact that they were approaching the bridge, or that any danger whatever confronted them.

The first point presented by appellants is that a...