Wheat v. Teche Lines, Inc

• Decision Date: 14 March 1938
• Docket Number: 33060
• Citation: 181 Miss. 408,179 So. 553
• Court: Mississippi Supreme Court
• Parties: WHEAT v. TECHE LINES, INC

179 So. 553

181 Miss. 408

WHEAT v. TECHE LINES, INC

No. 33060

Supreme Court of Mississippi

March 14, 1938

Division A

1 AUTOMOBILES.

Under evidence that plaintiff observed defendant's bus approaching at about 45 to 50 miles per hour and stepped in front of plaintiff's truck, that bus driver had 36 feet to left of truck in which to pass, that red flags warned travelers of loose gravel but that bus passed within a foot of plaintiff and threw pieces of slag into his eye, questions whether bus driver was traveling at a reasonable speed, and whether bus driver was in such close proximity to plaintiff as to endanger life or limb, were for jury (Code 1930 section 5569, as amended by Laws 193.6, chapter 309).

2 AUTOMOBILES.

The operation of a motor vehicle at less than a fixed maximum rate of speed may be negligence under proper circumstances (Code 1930, section 5569, as amended by Laws 1936, chapter 309).

3 AUTOMOBILES.

Under evidence that plaintiff observed defendant's bus approaching at about 45 to 50 miles per hour and stepped in front of plaintiff's truck, that bus driver had 36 feet to left of truck in which to pass, that red flags warned travelers of loose gravel hut that bus passed within a foot of plaintiff and threw pieces of slag into his eye, whether bus driver could reasonably have foreseen the possibility of injury to any person was for jury (Code 1930, section 5569, as amended by Laws 1936, chapter 309).

4. APPEAL AND ERROR.

In determining whether defendant was entitled to directed verdict, evidence for plaintiff must be treated as proving every fact favorable to plaintiff's case which is established either directly or by reasonable inference.

5. APPEAL AND ERROR.

The evidence is to be taken most strongly against him who is granted a peremptory instruction.

6. EVIDENCE.

In action for injuries sustained when passing bus threw particles of slag into plaintiff's eye, photographs of highway where accident occurred were improperly admitted in evidence in absence of showing that they approximately represented the condition of the highway as it existed at time of injury.

HON. W. A. WHITE, Judge.

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

Action by Jesse Wheat against the Teche Lines, Inc., for a personal injury. From an adverse judgment, plaintiff appears. Reversed and remanded.

Reversed and remanded.

Gex & Gex, of Bay St. Louis, and Grayson B. Keaton, of Picayune, for appellant.

When the witness was asked the direct question as to what caused the gravel to be thrown, upon objection by the defendant, the court refused to permit the witness to answer. In the absence of the jury, it was shown that the witness would testify that the speed of the bus caused the gravel to be thrown, and when the jury was recalled the question was again asked, and the court again ruled that the witness would not be permitted to answer. This ruling is assigned as error. This very question has already been before this court in the case of Teehe Lines, Inc. v. Bateman, 162 Miss. 404, and decided adversely therein to the defendant in the court below.

It is a matter of common knowledge that the force with which an object is thrown diminishes in direct ratio with the increase in distance from which the object begins its flight; a piece of gravel thrown with the same force from a distance of three or four feet will strike with far greater violence, than the same gravel started with the same force but traveling thirty or forty feet before contacting some other object in the course of its flight.

We submit that the testimony as to the width of the road, and to the effect that the bus could have easily turned aside a considerable distance to the left, and prevented showering plaintiff with rocks, was entirely competent.

The pictures were not authenticated in any manner, no attempt was made to show that they properly portrayed the scene of the accident at the time thereof; and all the testimony is directly to the effect that the road had been repaired after the accident, and before the pictures were taken, aproximately four months having intervened between the date of the accident and the taking of the pictures. Certainly, under no circumstances were they admissible for any purpose, since all the authorities hold that in order to be admissible, photographs must first be shown to accurately portray the conditions as they existed at the time the accident occurred, or must be shown to be accurate representations of the thing testified about.

Gulfport Fertilizer Co. v. Bilbo, 174 So. 65; Gulf Research Corp. v. Linder, 170 So. 646; Tankersley v. Lincoin Tr. Co., 163 N.W. 850; Brodlen v. Lewis, 100 So. 324; Lentz v. Minneapolis & St. P. S. R. Co., 160 N.W. 79; Gose v. True, 198 N.W. 528; Porter v. Buckley, 147 F. 140.; MeCorren v. Boston & N. St. Ry. Co., 80 N.E. 477; Ford v. Mo. Pac. R. Co., 271 S.W. 967; Althoff v. I. C. R. Co., 227 Ill.App. 417; Lynch v. C. J. Larivee Lbr. Clo., 111 N.E. 861.

Under the well recognized rule of law, where a peremptory instruction has been given by the trial court, even where the defendant has offered evidence, which was not done in this ease, the plaintiff's testimony must be taken as true in its entirety, and every reasonable presumption and inference must be drawn therefrom, in favor of the plaintiff.

Masonite Corp. v. Dennis, 175 Miss. 855.

It is the rule in Mississippi that everything must be considered as proved which the evidence establishes directly or by reasonable inference against the party who asks a peremptory instruction.

Dean v. Brannon, 139 Miss. 312, 104 So. 173; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Wise v. Peugh, 140 Miss. 479, 106 So. 81; St. Louis & S. F. R. Co. v. Nixon & Phillips, 141 Miss. 677, 105 So. 478; Gulf & S. I. R. Co. v. Hales, 140 Miss. 829, 105 So. 458.

The Laws of 1936, Chapter 309, fixes the maximum rate of speed at which all motor vehicles may travel upon the highway, with the exception of trucks, at fifty miles per hour.

Even though the maximum rate of speed upon highways or city streets is in excess of twenty miles per hour, yet a motorist is required to operate his motor vehicle at a rate of speed which is reasonable and proper. It is true that permission is given by the statute to operate motor vehicles other than trucks outside of cities at a rate of speed not to exceed fifty miles per hour; however, that part of the statute is subject to the limitation of the opening clause, or that is to say, the speed must always be limited to "what is reasonable and proper having due regard to the traffic and use of the highway', and must be such as not "to endanger the life or limb of any person or the safety of any property."

Snyder v. Campbell, 145 Miss. 287; Frazier v. Hull, 127 So. 775; Bateman v. Teche Lines, Inc., 162 Miss. 404.

We may concede for the purpose of this argument that the rate of speed was not more than fifty miles per hour; yet it was a question for the jury to determine whether or not under the circumstances surrounding the accident, that rate of speed was negligent.

It was the duty of the defendant to use due care to avoid injury to others rightfully upon the highway, and it was a question for the jury to determine whether or not under the facts the defendant did so.

Burcham v. Robinson, 74 So. 417.

There is no contradiction of the fact that the driver of the bus in question had warning of the bad condition of the road by reason of the red flag of caution; he could plainly see the position of the plaintiff at the edge of the highway; it was his duty to slack his speed, and pull away from the plaintiff so as to avoid the injury which occurred. It might be contended that the defendant was not charged with knowledge that the roeks would be thrown by the oversize wheels of his bus traveling at a very high rate of speed, but it is not necessary that he either know or realize the exact injury which may be caused by his negligence; it is sufficient that if by reasonable care he might have foreseen that some injury would result.

Railroad Co. v. Hicks, 91 Miss. 273, 219 U.S. 39, 55 L.Ed. 78; Teehe Lines, Inc., v. Bateman, 162 Miss. 404; Deglopper v. Nashville Ry. & Light Co., 134 S.W. 609; Texas & P. Ry. v. Carlin, 111 F. 777, 189 U.S. 355, 47 L.Ed. 189; Milwaukee & St. Paul Ry. v. Kellog, 94 U.S. 469, 24 L.Ed. 256; 5-6 Huddy on Automobiles, page 44.

Cases could be multiplied indefinitely on the proposition that questions of negligence and proximate cause should be submitted to a jury, or, that is to say, that what is negligence under the given statement of facts, and whether that negligence was the proximate cause of the injury sustained is always a question for the jury under proper instruetions. However, we submit that even if the law was otherwise, the court would take judieial knowledge that a rapidly moving vehicle such as the bus at issue would create a vacuum drawing loose material to it and throwing it off.

San Antonio & A. P. Ry. v. Mertink, 102 S.W. 153.

We submit further that even if no negligence had been proven in this case by direct testimony, the doctrine of res ipsa loquitur applies to its fullest extent.

Alabama & V. Ry. ease, 52 So. 703.

Porteous, Johnson & Humphreys, of New Orleans, La., and White & Morse, of Gulfport, for appellee.

The action of the lower court was eminently correct for the following reasons:

1. It does not appear appellee had any connection with the matter or owned or operated the bus or that any one authorized or employed by appellee was in charge of or driving same.

2. The attempt to show liability on the theory the bus drove close to appellant failed because such fact, if it were a fact could not and did not...