Westerfield v. Shell Petroleum Corporation

• Decision Date: 04 January 1932
• Docket Number: 29644
• Citation: 161 Miss. 833,138 So. 561
• Court: Mississippi Supreme Court
• Parties: WESTERFIELD v. SHELL PETROLEUM CORPORATION et al

138 So. 561

161 Miss. 833

WESTERFIELD v. SHELL PETROLEUM CORPORATION et al

No. 29644

Supreme Court of Mississippi

January 4, 1932

Division B

1 AUTOMOBILES.

Motorist driving too far on wrong side of highway and colliding with another automobile held liable for injuries to guest notwithstanding the other motorist might have avoided collision by exercising reasonable care.

2 AUTOMOBILES.

If automobile guest's injury was caused by joint negligence of driver and another motorist, liability was joint and several.

3. TORTS.

Joint tort-feasors may be proceeded against singly, jointly, or individually, or all combined.

4. AUTOMOBILES.

Automobile driver is liable for injury if his negligence, concurring with some other sufficient cause or causes, proximately caused injury.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county HON. W. H. POTTER, Judge.

Action by Mrs. Y. M. Westerfield against the Shell Petroleum Corporation and another. A nonsuit was taken against defendant named, and, from a judgment in favor of the other defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Holmes & Potter, Ross R. Barnett and E. L. Shelton, all of Jackson, for appellant.

As a general rule it is not necessary that the operator's negligence shall be the sole cause of the injury in order to render him or the owner liable therefor, but it is sufficient that his negligence concurring with some other efficient cause or causes proximately causes the injury.

42 C. J. 887, 42 C. J. 1055.

Conflicting or contradictory instructions furnish no correct guide to the jury, and the giving thereof is erroneous; and it is of course proper for the court to refuse requested instructions affected with this vice.

38 Cyc. 1604 et seq.

To instruct the jury on the one hand that the defendant was guilty of negligence, and then in another set of instructions to leave it to the jury to say whether or not the defendant was guilty of negligence, presented to the, jury instructions which were directly in conflict, wholly contradictory, and irreconcilable, and must necessarily have misled the jury to the prejudice of the plaintiff.

R. R. Co. v. McGowan, 92 Miss. 603; Y. & M. V. R. R. Co. v. Cornelius, 131 Miss. 37; Hines v. Lockhart, 105 So. 449.

May, Sanders, McLaurin & Byrd, of Jackson, for appellees.

Appellant complains that the court erred in failing to direct the jury to find for her peremptorily. As to this we can only say that if it be conceded that plaintiff was entitled to the instruction which informed the jury that defendant was guilty of negligence in placing a part of her car to the left of the automobile on the highway it was for the jury to determine whether or not such an act on her part was a proximate contributing cause of the collision.

The instruction complained of, granted at the request of the defendant, does nothing more than tell the jury that if, under the circumstances surrounding and conditions at the scene of the accident, defendant handled her automobile as an ordinarily prudent person would, they should find for the defendant.

OPINION

Anderson, J.

Appellant brought this action against the Shell Petroleum Corporation, and appellee, Mrs. T. B. Harrison, in the circuit court of Hinds county, to recover damages for an injury received by her, growing out of the collision of an automobile driven by appellee, in which appellant was traveling as the latter's guest, with a Shell Petroleum Corporation automobile, alleged to have been caused by the negligence of the appellee and the Shell Petroleum Corporation. A nonsuit was taken against the Shell Petroleum Corporation, and the trial of the cause was proceeded with against the other appellee, Mrs. Harrison, resulting in a verdict and judgment in her favor, from which judgment appellant prosecutes this appeal.

The court refused appellant's request for a directed verdict in her favor on the issue of liability. There was no substantial conflict in the material evidence.

In the afternoon appellee was driving an automobile northward on the Jackson-Canton highway, which runs north and south. Appellant was riding with her, as her guest, both occupying the front seat of the automobile. When they reached a point about one and a half miles north of Tougaloo, appellee, seeing a Shell Petroleum Corporation automobile approaching from the north, drove her car to the extreme right of the highway, near the ditch on the east side, and then turned in a northwesterly direction on the west side of the highway, that is, west of the center of the highway, whereupon her car collided with the approaching Shell car, which was proceeding on its right-hand side of the highway, that is, to the west side of the center of the highway. The Shell car was hit on its left side, near the back of the hood, and appellee's car was struck on the front, slightly toward the right side, damaging the right fender and right side of the car, and shattering the front light on that side. The impact caused appellee's car to change its direction, and go off the west side of the highway down the embankment a short distance from the point where the impact occurred.

There can be no doubt from the evidence that at about...