Thomas v. Feibelman

• Decision Date: 30 January 1933
• Docket Number: 30398
• Citation: 145 So. 607,164 Miss. 699
• Court: Mississippi Supreme Court
• Parties: THOMAS v. FEIBELMAN et al

145 So. 607

164 Miss. 699

THOMAS v. FEIBELMAN et al

No. 30398

Supreme Court of Mississippi

January 30, 1933

Division B

AUTOMOBILES. Verdict denying recovery to storekeeper, injured when emerging through doorway, due to truck's striking door held against weight of evidence.

Evidence disclosed that the main entrance of storekeeper's place of business abutted on private highway, and the door, which swung outward, was violently struck by truck driven at twelve to fifteen miles an hour by person familiar with conditions. There was no evidence that plaintiff was negligent, and only excuse offered by driver was that he was temporarily blinded by headlights of car in an adjacent street.

HON. J D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county, HON. J. D. FATHEREE Judge.

Action by Mike Thomas against B. M. Feibelman and another. From judgment for defendants, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Dunn & Snow, of Meridian, for appellant.

The uncontradicted testimony in the case establishes negligence in the operation of the automobile by Harrison and utterly fails to show any negligence on the part of the plaintiff which caused or contributed to his injuries.

The verdict of the jury being palpably contrary to the established and uncontradicted facts in the case it was error for the court to overrule the plaintiff's motion for a mistrial.

The appellant was certainly at a place he had a lawful right to be; he was on his own premises, engaged about his own little business on the usual and customary manner of conducting the same. He had the right to be there and also had the right to assume that he would not be run down by an automobile, which would suddenly, without warning, be driven against him while he was in the act of passing through the door of his store. How can it be said that he was guilty of negligence, and that his negligence was the sole cause of the injuries which he sustained?

No citation of authority is necessary to show, as a matter of law, under the undisputed facts that Harrison was guilty of negligence and that his negligence was the sole cause of the injuries to the appellant. We respectfully submit that the testimony, undisputed and unimpeached was wantonly disregarded by the jury, and that the appellant was the victim of a gross injustice as the result of such wanton and inexcusable conduct of the jury and that he should have a new trial of his cause.

Gilbert & Cameron, of Meridian, for appellees.

If the sole cause of accident was the act of appellant opening door onto driveway and against the car of appellees no liability existed.

Bonelli v. Branciere, 127 Miss. 556, 90 So. 245.

The question as to whether it was negligence for Harrison to drive his car into "drive" station provided by appellant, in the manner as testified to and under the circumstances as reflected by this record was clearly a question of fact for a jury and not one of law for the court.

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

The testimony of Harrison did not demonstrate any act or acts of negligence and when taken in connection with appellant's version of happening demonstrates beyond any question of a doubt that this entire matter deserves to be classified as one of those "unavoidable accidents" nothing strange about it for they frequently occur without either party being chargeable with an omission of duty or failure to exercise reasonable care.

The case fails to disclose actionable negligence and this question having been submitted to a jury under fair and liberal instructions, the action of the jury reflected in its verdict should not be disturbed and the cause in all respects should be affirmed.

OPINION

Griffith, J.

Appellant was the lessee and operator of a store at a street corner. In and at this store he served cold drinks and other such things as are commonly sold at a small combination grocery store and gasoline filling station. In order the better to serve and to accommodate the customers, the building was so constructed as that a portion of the corner thereof next to the street corner was converted into a "drive-in" space, this space being triangular in shape, and in the wall constituting the base of the triangle there was a screen door which was the main entrance into and exit from the store. On the occasion in...