Teche Lines, Inc. v. Pasavanti
| Citation | 140 So. 677,163 Miss. 93 |
| Decision Date | 04 April 1932 |
| Docket Number | 29635 |
| Court | United States State Supreme Court of Mississippi |
| Parties | TECHE LINES, INC., v. PASAVANTI |
(In Banc.)
AUTOMOBILES.
Negligence of driver of motorbus, which collided with automobile traveling in opposite direction but stopped, held question for jury under evidence.
APPEAL from circuit court of Adams county, HON. R. L. CORBAN, Judge.
Action by Mrs. Sam S. Pasavanti against the Teche Lines Incorporated. Judgment in favor of the plaintiff, and the defendant appeals. Affirmed.
Affirmed.
Whittington & Brown, of Natchez, and Hugh v. Wall, of Brookhaven, for appellant.
A preponderance of the evidence in this case was in favor of the defendant and it established by the evidence of disinterested and credible witnesses; by the physical facts surrounding the scene of collision after the collision; by the impossibility of the collision happening as plaintiffs and their one witness say, that the defendant was entitled to the peremptory instruction requested.
Where evidence given by an equal number of witnesses for the parties litigant, the testimony of those witnesses shown to be disinterested will be given the greatest consideration in determining the true facts going to establish liability for collision between automobiles.
Briede v. Schick, Orleans No. 9116.
Where the preponderance of the evidence is for the plaintiff and his witnesses are unimpeached, he is entitled to a judgment.
Canal v. Smith, 14 Orleans App. 296.
Where verdict is contrary to the great weight of credible evidence offered in the case, it is reversible error for the court to refuse to grant the motion for a new trial.
Mobile & O. R. Co. v. Bennett, 90 So. 113; Powell v. English, 122 So. 217; Columbus & G. Ry. Co. v. Buford, 116 So. 819.
Under the law of Louisiana, even though the defendant had been guilty of negligence as charged in the declaration, yet if the plaintiff also was guilty of negligence contributing to the injury, she could not recover.
In case of conflict between the testimony of the plaintiff and defendant; that testimony will prevail which is corroborated by other facts of the case.
Young v. Louisiana Canning Co., Orleans No. 8140.
Under the Laws of Louisiana, just as under the Laws of Mississippi, the burden is upon the plaintiff to show fault and negligence of the defendant in the collision between the Buick and the bus.
The collision could not have occurred like plaintiff and her witnesses say it did because the physical facts as disclosed by the record disputed this. The undisputed evidence shows that the front end of the Buick was not touched, neither was the front end of the bus. The evidence shows that the running board of the Buick was crushed; the rear door on the left hand side looking North and the fender on the Buick on the left hand side were damaged. That the front of the rear fender on the left hand side looking South of the bus showed signs of collision. Thus demonstrating that there was but one way for the physical signs to be made on the two cars and that was that the Buick skidded into the bus because, if the bus had skidded into the Buick, the back end of the rear fender of the bus would necessarily have struck the Buick. The front end of the rear fender of the bus could not have struck the Buick, if it had skidded into the Buick as contended by the plaintiff and her witnesses.
The mere fact that automobile skidded is not evidence of negligence.
Baret v. Cado Transfer & W. Co., Inc., 165 La. 1075, 116 So. 565.
In an action for damages for personal injuries received by plaintiff in a collision with a motor truck, where the evidence shows that the plaintiff was negligent down to the moment of the collision and her negligence caused or contributed to cause the collision, and that the driver of the motor truck saw her as soon as it was possible for him to do so, and that after seeing her he did all in his power to avoid striking her with the motor truck, the plaintiff cannot recover.
Thomas v. Natural Gas Co., 9 La. App. 680, 121 So. 649.
The physical facts demonstrate and the overwhelming evidence of the eye witnesses is to the effect that the sedan slided into the bus and this being contributory negligence on the part of the appellee under the law of Louisiana, there can be no recovery.
Engle & Laub, of Natchez, for appellee.
Witnesses are weighed and not counted.
Guesselich v. Nunez, La. Appeals 1924, Orleans No. 8659.
Upon questions of fact judgment will be rendered in accordance with the preponderance of the testimony.
Fine v. Finkelstein, 3 La.App. 347.
All presumptions are in favor of the judgment.
Bates v. Strickland, 103 So. 432, 139 Miss. 636.
Where there is some conflict in the evidence the appellate court will accept the evidence of the successful party and determine from them whether or not the Chancellor's decree must be upheld.
Biles v. Walker, 83 So. 411, 121 Miss. 98.
In reviewing finding on conflicting evidence testimony supporting finding must be accepted as true.
129 Miss. 658, 92 So. 583; Powell v. Tomlinson, 92 So. 226, 129 Miss. 354.
The appellee, plaintiff below, more than met the burden of proving her case by a preponderance of the evidence.
The jury were the sole judges of the credibility of the witnesses and evidently the court judged the witnesses the same as the jury did, for the reason that he did not grant a new trial, in this case.
Defendant in a personal injury action pleading contributory negligence has the burden of establishing defense by preponderance of evidence.
Shannon v. New Orleans Ry. & Light Co., 4 Orleans Appeals 302.
Where contributory negligence is a special defense and the evidence is conflicting the court will not consider the contributory negligence proven.
Armour Packing Company v. Walker Price Oil Co., 1 La. Appeals 477.
Appellee brought this action against appellant in the circuit court of Adams county to recover damages for a personal injury suffered by her, and injury to and loss of her wearing apparel and personal effects, caused by a collision between an automobile in which appellee was traveling and a passenger bus belonging to appellant, alleged to have been caused by the negligence of the driver of the bus. There was a verdict and judgment in appellee's favor in the sum of nine hundred fifty dollars, from which judgment appellant prosecutes this appeal.
Appellee and four other ladies, all related, being sisters or cousins, lived in Natchez; they had been to New Orleans on a shopping trip and were returning from New Orleans to Natchez in a Buick sedan. Mrs. Sarah Heatherley, one of the party, was driving the car. The collision between appellant's passenger bus and the Buick sedan occurred near Reserve in the state of Louisiana. The highway on which the passenger bus and the Buick sedan were traveling runs north and south, and at the point where the collision took place it is straight for half a mile or more in each direction; it is not a paved highway, but is graveled and is about thirty feet wide; there had been recent rains and the highway was slick. The Buick sedan was traveling north, and the passenger bus south. The passenger bus was thirty feet long, about seven feet wide, and weighed something like sixteen thousand pounds, and had double wheels. The result of the collision was that appellee suffered personal injuries and had to pay hospital and doctors' bills, and certain wearing apparel and personal effects carried by her in her suit case were destroyed in part and damaged in part.
Appellee charged in her declaration, in substance, that the collision between the bus and the Buick sedan, and the resulting injury and damage was caused by the bus being operated at an excessive and dangerous rate of speed, in view of the condition of the highway, which was wet and slippery at the time. That the driver of the bus was negligent in failing to keep a lookout for objects on the highway, and failing to have the bus under control. That the driver of the bus, instead of keeping on his right-hand side of the highway, got over on the left-hand side, resulting in the collision. That the driver of the bus was operating it in such a careless and negligent manner as to lose control of it. That the bus was operated in such a negligent manner as to cause it to skid into the car in which appellee was riding. That the bus was being operated in violation of the statutes of Louisiana.
The principal ground assigned and argued by appellant for reversal of the judgment is that under the evidence it was entitled to a directed verdict. To sustain that position appellant contends that the undisputed physical facts show that the collision between the bus and the car took place without any fault on the part of the driver of the bus.
Appellee and the four ladies with whom she was riding in the Buick sedan, and one Reine, testified that they saw the bus coming down the highway, going south, approaching them as they were going north, Reine being south of the place where the collision occurred. That when they first observed the bus it was about three hundred feet north of the Buick sedan. That the highway was graveled and wet and slippery. That the bus was running at a high rate of speed and was zigzagging or swaying back and forth from...
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