Teche, Lines, Inc. v. Bateman

• Decision Date: 18 January 1932
• Docket Number: 29747
• Citation: 139 So. 159,162 Miss. 404
• Court: Mississippi Supreme Court
• Parties: TECHE, LINES, INC., v. BATEMAN

139 So. 159

162 Miss. 404

TECHE, LINES, INC., v. BATEMAN

No. 29747

Supreme Court of Mississippi

January 18, 1932

Division B

1 HIGHWAYS.

Traveler on highway assumes risk incident to travel in reasonable and lawful manner.

2 AUTOMOBILES.

Motorist exceeding legal speed limit, and as result inflicting injury on another, is liable therefor (Code 1930, section 5569).

3 AUTOMOBILES.

Every motorist owes duty to every other traveler to exercise reasonable care to prevent injury and operate motor vehicle in accordance with statutes.

4 AUTOMOBILES.

Motorist on gravel highway is bound to know that rocks are likely to be hurled with more or less violence according to speed and weight of car, and may injure others.

5. NEGLIGENCE.

Where violation of statute causes injury which can reasonably be anticipated, or where some injury can be anticipated, liability therefor accrues.

6. CONSTITUTIONAL LAW.

That numerous suits may be filed for violations of statute regulating speed of automobiles, and difficulty of defending claims, should be addressed to legislature, not to court (Code 1930, section 5569).

7. AUTOMOBILES.

Bus company was liable for injury to automobile occupant if proximately caused by gravel thrown by bus because of its reckless negligence and excessive speed (Code 1930, section 5569).

8. DAMAGES. Instruction permitting jury to consider mental anguish in assessing damages for loss of eye in automobile accident held not objectionable under circumstances.

The instruction was not objectionable under circumstances, since whatever difference there may be in physical and mental suffering resulting from physical injury accompanied by pain, facts clearly showed that mental anguish suffered by plaintiff was result of physical suffering caused by injury.

9. DAMAGES. Twelve thousand dollars verdict for twenty-eight year old married trained nurse for injury causing permanent loss of sight of eye held excessive by five thousand dollars.

Facts disclosed that prior to injury plaintiff was employed as nurse at one hundred dollars a month, and that she was deprived of employment for four months by reason of the injury, and that since that time she was replaced on registered list of nurses and engaged in occupation, but she stated that she did not take long and difficult cases.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Hancock county HON. W. A. WHITE, Judge.

Action by Mrs. Velma Bateman against Teche Lines, Incorporated. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

Affirmed with remittitur.

Robt. L. Genin, of Bay St. Louis, and Hugh V. Wall, of Brookhaven, for appellant.

The court erred in granting the following written instruction for the plaintiff.

The court instructs the jury that if you believe from a preponderance of the evidence in this case, that the plaintiff herein was injured by flying gravel thrown from a bus belonging to the defendant herein, while said bus was traveling at a reckless, negligent and excessive rate of speed, and that the gravel was thrown by said bus because of the reckless, negligent and excessive rate of speed at which said bus was being driven at said time, and that the reckless, negligent and excessive rate of speed of said bus, if any, was the proximate cause of said injury, then you shall find for the plaintiff.

It is not every act resulting in injury to another that subjects the person doing the act to liability for the injury and damages resulting therefrom. The act must be of such a character that the person doing it should reasonably anticipate that some injury to another will probably result therefrom.

D'Antoni v. Albritton, 126 So. 836, 156 Miss. 758; Wilborn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9; Burkes v. Lieberman, 218 N.Y.S. 583, 15 N.E. 865.

The court erred in granting the following instruction for the plaintiff.

The court instructs the jury for the plaintiff, that if you believe from the preponderance of the evidence that the defendant is liable to the plaintiff in this action, then in assessing damages against the defendant, you may take into consideration the pain and suffering of the plaintiff, her mental anguish, if any, the bodily injury sustained by her, her pecuniary loss, her loss of power and capacity of work, if any, and its effect upon her future.

This instruction also permits the jury to assess damages for mental anguish disconnected or separate, or in addition to physical pain and suffering.

Bonelli v. Branciere, 127 Miss. 556, 90 So. 245; Dorrah v. I. C. R. R. Co., 65 Miss. 14, 3 So. 367, Am. St. Rep. 629.

There is no positive evidence showing that the bus threw the pebble complained of. It is only a conjecture, a guess, a supposition, or an inference.

De Glopper v. Nashville Railway & Light Company, 123 Tenn. 633.

It was not an injury that could have been foreseen or reasonably anticipated as the probable result of the running of the bus at a greater rate of speed than was allowed by law.

Burkes v. Lieberman, 218 N.Y.S. 593, 157 N.E. 865; Cole v. German Saving & Loan Association, 124 F. 113, 59 C. C. A. 593, 63 L. R. A. 416; Lewis v. St. Louis Independent Packing Company et al., 3 S.W.2d Series 244.

Even though defendant's driver was negligent in driving to the left in violation of the ordinance, defendant cannot be required to respond in damages if the injury to deceased was caused by an occurrence over which the driver had no control and which he could not reasonably have foreseen as the result of such negligence.

Daneschocky v. Sieble, 195 Mo.App. 470, 193 S.W. 966; Broek v. Mosler Safe Company, 288 Mo. 83; De Moss v. Kansas City R. R. Co., 296 Mo. 526; Gant v. Gant, 148 S.E. 34; Fore v. Geary, 191. N.C. 90, 131 S.E. 387; Burkes v. Lieberman, 218 N.Y.S. 593, 218 A.D. 600; Southern Utilities Company v. Matthews, 93 So. 188, 84 Fla. 30; De Glopper v. Nashville Railway & Light Co., 123 Tenn. 633 (1911); Rolands v. Morphis, 130 So. 906, 158 Miss. 662; Pounders v. Day (Miss.), 118 So. 298; Hattiesburg Chero-Cola Bottling Co. v. Price, 106 So. 771, 141. Miss. 892; 108 So. 291, 153 Miss. 14; Eichman v. Buchheit, 128 Wis. 385, 107 N.W. 325, 8 Ann. Cas. 435.

Violation of a legal duty by a driver on the highway does not necessarily carry with it liability for an injury caused by his car for to incur such liability the violation must have been the proximate cause of the injury concerning which complaint is made.

Hester v. Coliseum Motor Company, 285 Wyo. 781; Feague v. Alabama Co-Co-Bottling Co., 209 Ala. 205, 95 So. 883; Huddy Ency. of Automobile Law, 3-4, pp. 44, 45; Friedman v. Rundler Creamery Co. (Md.), 148 A. 426-431; Sutton v. Hank, 108 Conn. 9, 142 A. 385; Huddy Ency. A. L. 49; Maloney v. Kaplan, 223 N.Y. 426, 135 N.E. 833; Huddy Ency. of A. L. 3-5, p. 51.

Assuming for the sake of argument that the bus was being driven at a speed in excess of that fixed by the statute, the negligence charge was not the proximate cause of the injury. The gravel or pebble, was an independent disturbing agency intervening.

Louisville & N. R. Co. v. Daniels, 135 Miss. 33, 99 So. 434.

The court erred in permitting the excessive verdict of twelve thousand dollars to stand.

Cotton Mill Products Company v. Oliver, 153 Miss. 362, 121 So. 111; P. Lorillard Co. v. Clay, 127 Va. 734, 104 S.E. 384.

Upon the question of negligence in the operation of motor vehicles we are aware of section 5588 of the Code of 1930, known as the prima facie statute and we call the court's attention to it with the suggestion that in our opinion it does not apply in this case. First, that the prima facie statute would have no application to an alleged injury caused by a passing vehicle picking up a pebble or rock and by the turning of the wheel the rock or pebble is released and flies against the windshield of another car going in an opposite direction. Second, the prima facie statute has no application for the reason that the violation of the statute would have to be the proximate cause of the alleged injury.

New Orleans & G. N. R. R. Co. v. Walden, 133 So. 241; Western Atlantic R. R. Co. v. Henderson, 279 U.S. 639, 73 L.Ed. 884; Rowlands v. Morphis, 130 So. 906.

In order to constitute actionable negligence there must exist three essential elements, namely, a duty or obligation which the defendant is under to protect the plaintiff from injury; a failure to discharge that duty; and injury resulting from the failure. Not only must the complaint disclose these essentials but the evidence must support them and the absence of proof of any of them is fatal to recovery.

What duty did appellant owe appellee under the facts in this case? It owed her the duty to stay on or be on the right hand side of the road and to so use its property right in the road as a reasonably prudent man would do, and the record discloses that the appellant was operating its bus in accordance with the rules of the road and that it was operating the bus just as a reasonably prudent man would have done. He therefore discharged every duty that he owed the appellee.

This is not a case in which the mere proof of the accident casts upon the appellant the burden of showing the real cause of the injury.

Wabash R. R. Co. v. Lock, 2 Am. Rep. 193; Baker v. Fehr, 97 Penn. St. Rep. 70; Noland v. Scheckle, 3 Mo.App. 300; Shultz v. Pacific R. R. Co., 36 Mo. 13-32; Rowlands v. Morphis, 130 So. 906; N. O. & G. N. R. R. Co. v. Walden, 133 So. 241; Mitchell v. Chicago Railroad Company, 51. Mich. 236, 47 Am. Rep. 566.

The proper inquiry is not whether the accident might have been avoided if the appellant had anticipated its occurrence, but whether, taking the circumstances as they then exist, the appellant was negligent in...