Terry v. Smylie

• Decision Date: 20 April 1931
• Docket Number: 29380
• Citation: 133 So. 662,161 Miss. 31
• Court: Mississippi Supreme Court
• Parties: TERRY et al. v. SMYLIE

133 So. 662

161 Miss. 31

TERRY et al. v. SMYLIE

No. 29380

Supreme Court of Mississippi

April 20, 1931

Division B

Suggestion Of Error Overruled May 25, 1931.

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

Action by Jessie Smylie against Lyman Terry and another. Judgment for the plaintiff, and the defendants appeal. Affirmed.

Affirmed.

Ford, White & Ford, of Gulfport, for appellants.

The rate of speed of the Terry car was not dangerous. Section 5569, Code 1930.

Even conceding the car was traveling more than the legal rate, yet this alone did not fix liability, and especially so when appellee was also violating the law.

Snyder v. Campbell, 143 Miss. 287.

When an accident occurs the motorist whose machine is on the wrong side of the road is usually responsible for the damage sustained by a pedestrian or by one whose vehicle was traveling on the proper side unless the violation of the law of the road was not the proximate cause of the accident or unless some valid excuse is given for such violation. However, it must be remembered that such a violation is not generally considered negligence per se and the issue of negligence is to be decided by the jury and not disposed of by the judge, although courts have in some cases held the driver negligent as a matter of law.

Schwartz on Trial of Automobile Cases, Sec. 209.

The general rule, requiring the driver of an automobile to maintain a speed sufficiently slow and to have such control of it that he can stop it within the distance in which he can plainly see an obstruction of danger, does not apply to a case where a dangerous situation which he has no reason to expect suddenly appears in front of his car.

Fleming v. Hartrick, 131 S.E. 558.

The question of the negligence of an automobile driver in continuing at a rate of speed which would prevent his stopping within range of vision after a passing vehicle has filled the air with dust in the nighttime, so that he collides with an unlighted parked truck is for the jury.

Murphy v. Hawthorne, 44 A. L. R. 1397.

No presumption of negligence arises from the mere fact of an automobile collision. The speed of an automobile at the time it collided with another is important only when it was the proximate cause of the accident.

Bloom v. Clark, 57 A. L. R. 585.

Although drivers of cars at night should always be able to stop within range of their lights the question as to whether plaintiff's negligence was the proximate cause of the accident is a question for the jury.

Frazier v. Hull, 157 Miss. 303.

Defendant was not guilty of contributory negligence because they were not required to anticipate a person would park on the wrong side of the street.

Clark v. Hughes, 134 Miss. 377.

An automobile is not a dangerous instrumentality.

Vicksburg Gas Company v. Ferguson, 140 Miss. 543

The jury might consider the fact that the defendant was blinded by a glare of light, as bearing on the question of failure to use proper care under the circumstances.

Salemme v. Mulloy, 99 Conn. 474, 121. A. 870.

The verdict was excessive.

Allen v. Freidman, 156 Miss. 77.

All questions of negligence and contributory negligence are for the jury.

Byrnes v. Jackson, 140 Miss. 656.

The cases invariably hold the wrongful parking to be the real cause of the injury, and in some instances decline to place contributory negligence on the moving vehicle. But in all cases it is held to be a jury question.

Waynick v. Walrond, 70 A. L. R. 1014.

Ordinarily one may regulate his own conduct on the assumption that others will act reasonably and lawfully.

The question of proximate cause is one of fact for the jury.

Hatch v. Daniels, 96 Vt. 89, 117 A. 105, 22 N. C. C. A. 205.

Mize, Mize & Thompson, of Gulfport, for appellee.

No person shall operate his car at a greater rate of speed than is reasonable and proper, having due regard to the traffic, etc., and in no event at a greater rate of speed than fifteen miles an hour where the territory is closely built up, or in the incorporated limits of a municipality.

Hemingway's Code of 1927, section 6680.

Iid=Party2ver of an automobile to keep his automobile under control in the city limits at any and all times, and he must use that degree of care and caution which an ordinarily prudent person would exercise under same circumstances.

Ulmer v. Pistole, 115 Miss. 485.

Proof of injury to persons on the highways by a vehicle operated in violation of the motor vehicle laws cast the burden on the driver or owner to show the exercise of due care and the observance of the statutes.

Flint v. Fondren, 122 Miss. 248.

The driver of an automobile must keep his machine constantly under control and must continue on the alert for pedestrians or others who may be upon the streets, and he must, at all times, operate his automobile at a rate of speed that is reasonable and proper under the conditions with which he is confronted, having due regard always to the traffic and use of the street.

Snyder v. Campbell, 145 Miss. 287, 110 So. 678.

Lyman Terry was responsible for the car driven by Dowan Terry.

Cowat v. Lewis, 117 So. 531.

It being the driver's duty to look ahead always and having no right to assume that the street or road is clear, it follows necessarily that when a driver finds himself so blinded from whatever cause that he cannot see in front of him, he assumes the risk of injuring those who may be in the street.

Kern v. Knight, 127 So. 133.

It is negligence to drive an automobile at night at a greater rate of speed than would permit the driver to avoid injury to persons or vehicles when they came within range of the lights on the front of the automobile.

Frazier v. Hull, 127 So. 775; Dominick v. Haines Bros., 127 So. 31.

It is the duty of the driver of an automobile when blinded by the lights to stop his car if necessary.

Mathers v. Bottsford, 97 So. 282.

The amount of damages is one for the jury and unless a verdict is so shockingly large as to shock the conscience of the court, it will not be disturbed.

St. Louis Ry. Co. v. Hays, 136 Miss. 701; M. C. Ry. Co. v. Hardy, 88 Miss. 732.

OPINION

Anderson, J.

Appellee brought this action against appellants in the circuit court of Harrison county, to recover damages for a personal injury received by her as the result of a collision between two automobiles alleged to have been caused by the negligence of the appellants. There was a trial, resulting in a verdict and judgment in favor of appellee in the sum of twenty-five hundred dollars; from which judgment appellants prosecute this appeal.

Appellants assign and argue as errors the action of the court in directing a verdict in favor of appellee on the issue of liability; and in refusing appellant's request for certain instructions, the character of which will be referred to later; and in refusing to grant appellants a new trial on the ground that the verdict was excessive.

The case, stated most strongly for the appellants, is as follows: Beach boulevard runs in an easterly and westerly direction along the Gulf front, in the city of Biloxi. It is a paved street, eighteen feet wide, closely built up with residences and business houses. Appellee's home is located on East boulevard, facing south toward the Gulf, and on the north side of the boulevard. Beach boulevard, throughout the entire corporate limits of the city of Biloxi, is lit up with electric lights about eighty feet apart. Appellee's injury was sustained on the evening of July 20, 1930. On the afternoon of that day appellee and Miss Carrie Goodman had gone out in the latter's car to the golf links, where they played golf together. Miss Goodman drove the car going and returning; and when they reached the home of appellee on their return it was about dark and the street lights were on. Miss Goodman did not live with appellee. She parked her car facing east on the north side of the boulevard, in front of appellee's home, with the parking lights on; and they sat in the car and talked about ten minutes before the collision occurred which caused appellee's injury. It was their intention, when they finished their social conversation, for appellee to get out of the car and return to her home, while Miss Goodman would leave in the car for hers. For five blocks east of appellee's home the boulevard is straight, and for about two hundred feet west, it is straight; but at that point there begins a curve.

On Sunday, July 20, 1930, the appellants, who are brothers, were in an automobile owned by appellant Lyman Terry, which was being driven by appellant Dowan Terry. When the collision occurred they were driving west to a pier, for the purpose of taking a boat to the Isle of Caprice, a pleasure resort out in the Mississippi Sound, where they were going for recreation. As stated, the car was owned by Lyman Terry, but was being...