Vann v. Tankersly

• Decision Date: 23 January 1933
• Docket Number: 30374
• Citation: 164 Miss. 748,145 So. 642
• Court: Mississippi Supreme Court
• Parties: VANN v. TANKERSLY

145 So. 642

164 Miss. 748

VANN v. TANKERSLY

No. 30374

Supreme Court of Mississippi

January 23, 1933

Division A

1 AUTOMOBILES.

On undisputed evidence, it was law question whether there was emergency which would excuse motorist from liability for injuries.

2 AUTOMOBILES.

Motorist confronted by sudden emergency need only exercise ordinary care in stress of circumstances to avoid accident.

3 AUTOMOBILES. Motorist losing control of automobile when attempting to prevent wife from falling out and backing into person on bench held not liable for injuries; emergency not being created by his negligence.

Evidence disclosed that motorist's wife closed door before motorist began backing away from curb, but that it must have been fastened insecurely, that he drove away slowly; that door suddenly swung open, and wife began to fall from automobile, and that motorist abandoned control of steering wheel and attempted to prevent wife from falling and evidently stepped on accelerator, with result that automobile backed into person seated on bench.

HON. J. M. KUYKENDALL, Judge.

APPEAL from circuit court of Yalobusha county, HON. J. M. KUYKENDALL, Judge.

Action by A. G. Tankersly against J. E. Vann. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Reversed and judgment here for appellant.

Kimmons & Boswell, of Water Valley, for appellant.

Of course, in every case of negligence, the circumstances under which an actor is placed, what an ordinarily prudent man would do or fail to do in such circumstances, must always be considered in connection with negligence. Every untoward or unforeseen occurrence may not be regarded as such negligence as would allow recovery therefor.

Mississippi Power & Light Company v. Sumner Gin Company, 156 Miss. 830, 840.

The danger was present and impending. Appellant had to choose instantly what course he would pursue. The wisdom of the course he pursued cannot be judged, by after events.

Rhodes v. Fullilove, 161 Miss. 41; Priestley v. Hays, 147 Miss. 843.

A person should violate the strict letter of the law if in an emergency it is reasonably necessary to prevent injury.

Priestley v. Hays, 147 Miss. 843.

But we forbear to press remark further on this point, and content ourselves by saying that the engineer was only required to act in view of what he then saw, situated as he was, and that suddenly and unexpectedly confronted with the complicated difficulty impossible to have been foreseen, he is not to be held accountable for failure to exercise that cool and unembarrassed and unerring judgment which we, freed from sudden surprise and danger, could now form and execute. He appears to have done the best he could, situated as he was, and nothing more could reasonably be required of him.

Brookhaven Lumber & Mfg. Company v. I. C. R. R. Company, 68 Miss. 432.

The question of contributory negligence is decided in the same way as original negligence, and a person is not guilty of contributory negligence when suddenly confronted with impending danger even though the action taken was not the wisest.

A. & V. Railway v. Lowe, 73 Miss. 203.

The Louisiana court follows the same rule in regard to an emergency.

Demarco v. Gover, 140 So. 64.

Appellee seems to concede that the emergency existed and therefore appellant would not have been negligent, but for the fact that he himself created the emergency; the record will not bear that construction. It certainly could not be said that a man is negligent because some one in the car with him closed the door, and he had sufficient confidence in them to believe that it was fastened.

Stone & Stone, of Coffeeville, for appellee.

It is a sufficient bar to the claim of an emergency to show that the emergency was created by the negligence of the party making the claim.

27 A.L.R. 1197.

Where one puts himself, by his negligence, in the face of an emergency he cannot claim non-liability when he hurts someone.

79 A.L.R. 1273, 1280; O'Malley v. Eagen, 77 A.L.R. 596; Bloom v. Bailey, 57 A.L.R. 585; 130 So. 199; 134 So. 418, 433, 313, 415; 139 So. 672; Martin v. Cazedessus, 130 So. 132; Demarco v. Gober, 140 So. 64.

Mr. Vann is not entitled to claim the benefit of any emergency because the emergency, if emergency it was, was caused by his own gross negligence.

OPINION

McGowen, J.

On the 29th of July, 1931, the appellant, J. E. Vann, in a 1929 model Ford coupe, accompanied by his wife, drove from their country home to the town of Coffeeville to attend a public political speaking at the courthouse. After attending the speaking, Vann and his wife drove to Main street and parked thereon in front of Bates Drug Store and the Coffeeville Bank against the curb facing west.

Main or Front street is between sixty and one hundred feet wide and runs north and south parallel with the Illinois Central. Railroad, with stores on the west side thereof fronting the east, and the railroad track on the east side. Depot street runs west to the public highway leading west through the county. Bates Drug Store is on the north side of Depot street, fronting on Main street. Eades Store is on the south side of Depot street. The intersection of Depot and Front or Main streets is the terminus of Depot street.

Ostensibly, the space between Bates Drug Store and Eades Store was used as a street. There is a sidewalk for pedestrians on the south and alongside Eades Store. Along the south side of Bates Drug Store, there had been maintained a long bench, about twelve inches wide, on which people were accustomed to sit and discuss the issues of the day. At times, this bench would be temporarily abandoned, until some patriotic citizen would renew the loafing place.

On the night in question, A. G. Tankersly, a night watchman employed by the merchants of the town of Coffeeville, was seated on the bench, with Walter Page on the east next to him, and next to Page, one Fly; all three being engaged in conversation. Vann, an elderly man, and his wife, came back to their car and got into it with the view of returning to their home. The witness Fly assisted Mrs. Vann into the car. Vann, seated at the wheel on the left hand side, backed out slowly, southeastwardly, with a view of heading his car north. He backed toward the railroad at first, and then, according to the witnesses, his car described a circle extending more than halfway into the street, came back, crossed the intersection of Depot and Front or Main streets, and was finally stopped by the wall of Bates Drug Store, where the wheels dug into the ground, indicating that the motor continued to run after the car struck the wall. The car struck Tankersly seated on the bench as aforesaid, and he was seriously injured, and sued Vann for the injuries thus sustained.

The evidence is uncontradicted that Mrs. Vann closed the door after she had gotten into the car, and that as the car was making the circle, the door was "flung open" and Mrs. Vann was being precipitated from the car headforemost. Vann, the husband, caught his wife and held her, thereby surrendering his control of the steering of the car. The witnesses stated that, at this point, the car speeded up, and was running from twenty to thirty miles per hour when it backed into Bates Drug Store and struck and injured Tankersly. At or about the time the car stopped, Mrs. Vann fell to the ground. She had been held by her husband on the running board in some manner. It is evident that the door of the car closed by Mrs. Vann did not fasten securely.

There is much conflict in the testimony as to the circumference of the circle described by the car in its voyage. There is no dispute as to the door suddenly coming open and as to Mrs. Vann's falling therefrom, nor as to Vann seizing her; and it is evident that he abandoned control of the steering wheel of the car, and must have pressed upon the accelerator, feeding more gas to the car and greatly increasing the speed thereof.

Both Vann and his wife were greatly excited from the time she fell from the car, and Vann says he lost his mind. He thought she fell as he reached the intersection of the two streets.

The witness Fly testified that the car was headed toward the bench where he and Tankersly were seated, coming rapidly, and that he saw it twenty feet before it reached them and moved, and that, at that moment, Tankersly "hollered," but made no effort to move and remained seated on the bench until struck by the car.

Tankersly testified that he did not see the car until too late to move, when it was about three feet from him.

As Vann was backing his car, he was looking backward, and he testified that, when he discovered his wife falling, he remembers nothing except that he was holding his wife to prevent injury to her. He did not know that any one was seated on the bench, and evidently did not intend to drive into Depot street. There was no evidence as to the presence of any other car being in the vicinity at or during the occurrence of this event.

The case was submitted to a jury mainly on the question of whether or not Vann was negligent in not controlling his car, or was confronted with an emergency. The verdict was in favor of Tankersly.

No question of pleading or variance was presented in this case. Vann requested a peremptory instruction, which was refused by the court.

There are other errors assigned, but we shall consider only the question of the liability of Vann under the detailed circumstances.

The statements of Vann and his wife as to her situation and all the circumstances surrounding the accident show clearly that Vann had been guilty of no negligence up to the moment he discovered his wife in peril as she was falling headlong from the car. He then became excited,...