Universal Truck Loading Co. v. Taylor

• Decision Date: 11 November 1935
• Docket Number: 31824
• Citation: 174 Miss. 353,164 So. 3
• Court: Mississippi Supreme Court
• Parties: UNIVERSAL TRUCK LOADING CO. v. TAYLOR et al

164 So. 3

174 Miss. 353

UNIVERSAL TRUCK LOADING CO. v. TAYLOR et al

No. 31824

Supreme Court of Mississippi

November 11, 1935

Division B

Suggestion Of Error Overruled January 13, 1935.

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

Action by Bama Taylor and another against the Universal Truck Loading Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Jacobson & Snow, of Meridian, for appellant.

In the case of S. H. Kress & Co. v. Sharp, 126 So. 650, the court recognized the doctrine that where the verdict and judgment is against the overwhelming weight or clearly against the greater proportion of the evidence the the verdict should not be permitted to stand.

Teche Lines, Inc., v. Mason, 144 So. 383.

In the Teche Lines case there was proof sustaining the issue on the appellee's behalf but the proof contra for appellant so overwhelmed appellee's proof the Supreme Court refused to let the verdict stand.

Miss. Central R. R. Co. v. Smith, 134 So. 534.

When all the testimony has been heard and all the argument delivered, and the verdict returned, if, upon a completed view of the entire case, the trial judge is then of the opinion that the verdict is against the overwhelming weight or clearly against the greater preponderance of the evidence, his duty is, upon a motion for a new trial, to set aside the verdict and grant a new trial.

Mobile & Ohio R. R. Co. v. Johnson, 141 So. 581; Mobile & Ohio R. R. Co. v. Bryant, 132 So. 539; Flowers v. Springer, 120 So. 198.

Where evidence supporting verdict is against weight of the evidence, trial judge may grant new trial, but cannot direct verdict for adverse party.

Newton v. Homochitto Lbr. Co., 138 So. 564; Columbus & Greenville Ry. Co. v. Buford, 116 So. 817; Mobile & Ohio R. R. Co. v. Bennett, 90 So. 113.

A simple reading of the testimony, we believe, will be sufficient to cause the court to reverse on the testimony.

McFadden v. Buckley, 53 So. 351; Fore v. A. & V. Ry. Co., 39 So. 493.

Uncontradicted evidence is not necessarily binding on the court or a jury, but, may be disbelieved where it is contradictory to material or physical laws, opposed to common knowledge, inherently impossible, inconsistent with circumstances and evidence, especially where the witness is a party of interest.

23 C. J., par. 1787, pages 46, 48 and 504; S. H. Kress & Co. v. Sharp, 126 So. 650.

Evidence intrinsically destitute of probative quality acquires no new attribute in point of weight by its production in the case.

23 C. J., page 40; I. C. R. R. v. Emerson, 44 So. 928; S. H. Kress & Co. v. Sharp, 126 So. 650.

The physical facts carefully noted and unhesitantly sworn to so far outweigh all of the appellees' testimony, and so thoroughly impeached Henry Covington's testimony we cannot believe this verdict and judgment can be permitted to stand on it.

Reily & Parker, of Meridian, for appellees.

The rule is where the evidence is conflicting and the issue was fairly submitted to the jury on proper instructions, their finding is conclusive.

Goodyear Yellow Pine Co. v. Anderson, 157 So. 700; Burrill v. Rau, 121 So. 118; Davis v. Temple, 91 So. 689; Morrell Packing Co. v. Brandon, 124 So. 356; Vicksburg Ice Co. v. Delta Ice Co., 119 So. 824.

It will be seen that the driver, being fully informed of the surrounding circumstances and conditions, drove the truck into a dangerous situation, and in so doing, he was guilty of the grossest negligence and wanton disregard of the rights and safety of the persons involved.

Restatement of the Law of Negligence, page 785, par. 291, and page 1293, par. 500; Rogers v. Lewis, 144; So. 373; Trico Coffee Co. v. Clemens, 151 So. 175.

OPINION

Griffith, J.

This case arose out of a collision, about ten-thirty o'clock at night, between two commercial trucks on or at a concrete bridge about two miles south of Basic in Clarke county. The bridge is eighteen feet five inches wide and twenty-one feet long. Appellant's truck was an International heavy machine with a strong factory built body seven feet six inches wide, and this truck on the occasion in question was northbound. The southbound truck was a Chevrolet light machine with a homemade body of seven feet six inches in width. The northbound truck was being driven by an adult, experienced driver accompanied by an experienced helper. The southbound truck, owned by a man named Covington, was being driven by a seventeen year old boy, who, while he had had some experience in handling trucks, had never before driven that particular truck. The owner, Covington, and his wife were seated on the driver's seat with the driver.

The northbound truck at the moment of the collision was being driven between twelve and fifteen miles per hour; the southbound truck about twenty to twenty-five miles per hour. The radiators, hoods, cabs, and front fenders of the two machines passed each other without injury, but the left-hand corners of the projecting bodies of the two trucks came in contact, with the result that the left side of the homemade body was stripped away, and the debris therefrom was scattered from just north of the north end of the bridge down to about the center thereof, with a few random pieces south of the center of the bridge. There was a tarpaulin cover over the homemade body of the southbound truck, and the torn portions of this tarpaulin were scattered along from the center of the bridge to its northern edge. Appellees' decedent, who was riding in the rear of the southbound truck, was killed as the result of the damage to the body of that truck; and on an action therefor and trial thereof appellees recovered judgment.

The drivers of the northbound truck testified that the collision happened when that truck was about to pass, and had partly passed from the bridge on the north side thereof. The driver and the owner of the southbound truck, together with the owner's wife, testified that the collision occurred at the south end of the bridge, and when the...