Wheat v. Wheat
| Decision Date | 29 February 1932 |
| Docket Number | 29869 |
| Citation | 139 So. 849,162 Miss. 595 |
| Court | Mississippi Supreme Court |
| Parties | WHEAT v. WHEAT |
1 AUTOMOBILES.
Evidence held to show that defendant motorist knew that automobile brakes were defective, as respects liability for accident (Code 1930, section 5575).
2 AUTOMOBILES.
Where automobile brakes were known to be defective before accident it was immaterial whether driver knew cause thereof (Code 1930, section 5575).
3. AUTOMOBILES.
Motorist on highway with brakes so defective that when applied they caused automobile to turn to right was negligent (Code 1930, sections 5575, 5588).
4. AUTOMOBILES. That pedestrian when injured by automobile coming from behind was on right side of road held not to bar recovery for injuries due to defective brakes (Code 1930, sections 5575, 5588).
Pedestrian's negligence in walking on right side of road would not defeat recovery because, being at most a contributing cause of the injury.
APPEAL from circuit court of Pearl River county HON. J. Q. LANGSTON, Judge.
Action by Glennis Wheat against Delos Wheat. From judgment for plaintiff, defendant appeals. Affirmed.
Affirmed.
Parker & Shivers, of Poplarville, for appellant.
Fault on the part of the defendant is to be found in action or nonaction accompanied by knowledge, actual or implied, of the probable results of his conduct; and, likewise, fault on the person injured is to be determined by the same test.
The foundation of liability, then, is knowledge--or what is deemed in law to be the same thing; opportunity by the exercise of reasonable diligence to acquire knowledge--of the peril which subsequently results in injury.
On the other hand, an injury is not actionable if it could not have been foreseen or reasonably anticipated. "Negligence presupposes a duty of taking care, and this, in turn, presupposes knowledge, or its equivalent." Mischief, which could by no reasonable possibility have been foreseen, and which no reasonable person would have anticipated, cannot be taken into account as a basis upon which to predicate a wrong.
One of the essential elements of negligence required to be proven is knowledge, whether actual or constructive of the defect and the burden of showing such knowledge is at all times upon the plaintiff.
Hope v. Railroad Company, 98 Miss. 822, 54 So. 369.
In order to show opportunity for inspection it is necessary for plaintiff in any case to show that the defect complained of had been in existence for such a length of time as to sufficiently afford an opportunity for the inspection and discovery thereof.
Gulf & M. C. R. R. Co. v. Brown, 143 Miss. 890, 180 So. 503; A. & V. R. R. Co. v. White, 106 Miss. 141, 63 So. 345; Hope v. Railroad Co., 98 Miss. 822, 54 So. 369.
The proof of an accident in cases of the kind involved in this suit raises no presumption of negligence.
Waddle v. Southerland, 156 Miss. 540, 126 So. 201.
This accident falls clearly within that line of authorities holding that if an injury was a result purely of an accident, then no recovery can be had.
Hattiesburg Chero-Cola Company v. Price, 141 Miss. 992, 106 So. 771; Ragland v. Native Lumber Company, 117 Miss. 602, 78 So. 542.
All pedestrians walking along the public highway shall walk on the left side of the road, or in such way as to face the direction from which cars using that side of the road are approaching.
Wells, Jones, Wells & Lipscomb, of Jackson, for appellant.
Sec. 5575, Code of 1930, is not applicable because appellee did not bring his case within its purview by meeting the burden of proof to show that this road was a public highway. The appellee did not meet the burden of proof by showing any negligence on the part of appellant in the matter of these defective brakes, because if the brakes were defective it is not shown that appellant had any knowledge thereof.
J. M. Morse, of Poplarville, for appellee.
Every motor vehicle while in use on the public highway or any street, avenue or alley, shall be equipped at all times with at least two independent and effective brakes.
In any action brought to recover for damages, either to person or property, caused by running or operating such motor vehicle in violation of any of the provisions of this chapter, the plaintiff, or plaintiffs, shall be deemed to have made out a prima-facie case by showing the fact of such injury and that such person or persons operating, or causing to be run or operated, such motor vehicle, was at the time of the injury running or operating, or causing the said motor vehicle to be run or operated in a manner contrary to the provisions of this chapter.
Appellee was entitled to a directed verdict.
Westerfield v. Shell Petroleum Corporation et al., 138 So. 561; Teche Transfer Company v. Bateman, not yet rep.; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522.
The law imposes as a condition upon a person that he who uses the road must have effective brakes, and this duty is absolute whether knowledge of the defective brakes is brought home to the party driving or not.
A prima-facie case is made out when it is shown that there is any violation of the statute regulating, among other things, the brakes and the speed of automobiles, and a casual connection between the violation of the statute and the injury is shown.
When appellant admitted that the car, on another occasion, only a few days before when the brakes had been applied, swerved violently to the right, and the brakes had not been worked on since, should carry the case to the jury even if we were not entitled to the directed verdict.
Section 511 of the Mississippi Code of 1930, provides that contributory negligence is no bar to recovery of damages, and since the appellant did not see fit in the lower court to plead contributory negligence, or request any instruction thereon, he is now precluded from asserting contributory negligence.
Railroad Company v. McGehee, 117 Miss. 370, 78 So. 296; Railroad Co. v. Lucken, 137 Miss. 572, 102 So. 393; Railroad Company v. Saucier, 139 Miss. 497, 104 So. 180.
The appellee, Glennis Wheat, was the plaintiff in the court below and filed this suit seeking damages for a personal injury inflicted...
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