Williams v. Larkin

• Decision Date: 10 April 1933
• Docket Number: 30524
• Citation: 166 Miss. 837,147 So. 337
• Court: Mississippi Supreme Court
• Parties: WILLIAMS v. LARKIN

147 So. 337

166 Miss. 837

WILLIAMS v. LARKIN

No. 30524

Supreme Court of Mississippi

April 10, 1933

Division B

Suggestion Of Error Overruled May 12, 1933.

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

Suit by Ben Larkin against Mrs. Frank Williams, Jr. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

Affirmed.

Dunn & Snow, of Meridian, for appellant.

It is not sufficient merely to prove an accident and injuries resulting therefrom to warrant a recovery, but, before a defendant can be held in damages for an injury resulting from an automobile accident negligence on the part of the defendant, proximately causing the injury, must be proven.

Rowlands v. Morphis, 130 So. 906; Murphy v. Willingham, 133 So. 213; Bonelli et al. v. Branciere, 90 So. 245; Hattiesburg Chera Cola Bot. Co. v. Price, 106 So. 771.

Our courts have held, and are committed to the theory, that an automobile is not a dangerous agency per se, and that it only becomes dangerous when negligently or recklessly handled.

Vicksburg Gas Co. v. Fergerson, 106 So. 258; Primos v. Gulfport Laundry & Co., 128 So. 507.

Then it logically follows that if an automobile is not a dangerous instrumentality or agency per se, and that if it requires careless, negligent or reckless handling in order to become dangerous, in a suit of this character the actions of the operator of the automobile determine liability, or no liability, where injury or damage has been caused, either to person or property, by an automobile.

Other courts have had cases similar to the one here before us and have concluded that when a motorist parks his car with one wheel against the curb, and the motor still, he has done all that a prudent person can be expected to do.

Berman et al. v. Schultz, 84 N.Y.S. 292; Vincent et al. v. Crandall & Godley Co., 115 N.Y.S. 600; Kercher v. Central Brewing Co. of New York, 150 N.Y.S. 986; Pesati et al. v. Jas. A. Hearn & Son, 202 N.Y.S. 264; Kaplan v. Schultz Bread Co., 208 N.Y.S. 118; Touris v. Brewster & Co., 246 N.Y. 226, 139 N.E. 249; Buzzello v. Sramck (Neb.), 193 N.W. 743; Sorruscha v. Hobson, 155 N.Y.S. 364.

If the court should hold there is sufficient evidence in this case for the appellee to carry the case to the jury, then it should be reversed and remanded because the verdict of the jury and judgment of the court is contrary to the overwhelming weight of the testimony.

Teche Lines, Inc. v. Sadie Lee Mason, 144 So. 383; Mobile & Ohio Railroad Co. v. Bryant, 132 So. 539; Flowers v. Springer, 120 So. 198; Newton v. Homachitta Lumber Co., 138 So. 564; Columbus & Greenville Railway Co. v. Buford, 116 So. 817; Mobile & Ohio R. R. Co. v. Bennett, 90 So. 113; McFadden v. Buckley, 53 So. 351; Fore v. A. & V. Ry. Co., 39 So. 493; M. & O. R. R. Co. v. Johnson, 141 So. 581.

The court below committed error in granting instruction No. 1. This instruction is in the following words: "The court charges the jury for the plaintiff: that if you find from a preponderance of the evidence in this case, that the striking of the plaintiff by defendant's automobile was proximately caused by the negligence or wrongful act of any person, the said striking was not a simple accident, as used in these instructions."

The conduct of counsel for the appellee in presenting, and the ruling of the court in permitting, questions to be asked and testimony given in the presence of the jury, tending to show that the automobile involved in this accident was covered by indemnity insurance is reversible error.

Herrin-Lambert & Co. v. John Patrick Daly, 80 Miss. 341; Rhinehart & Dennis Co. v. Brown, 120 S.E. 269; Ronan v. J. G. Turnbull Co., 131 A. 793; Trent v. Leichman Printing Co., 126 S.W. 239; Wilkens v. Swartz, 132 S.E. 887; Rosenmy v. Marks, 246 P. 726; Stoskoff v. Wicklung, 193 N.W. 312; Conover v. Bloom, 112 A. 752; Lylton v. Marion Mfg. Co., 72 S.E. 1056; Casselman v. Demfee, 65 N.E. 494; Simpson v. Foundation Co., 95 N.E. 11; Aiken v. Lee, 99 N.E. 85; Rodzhorski v. Am. Sugar Refining Co., 104 N.E. 616; Birch v. Abercrombe (Wash.), 133 P. 1021; Miller v. Harrison Construction Co., 298 S.W. 259; Kerr v. National Fulton Brass Co., 118 N.W. 956; Martin v. Lilly, 121 N.E. 444; Taggart v. Keebler, 154 N.E. 486; Donnelly v. Younglove Lbr. Co., 129 N.Y.S. 689; Horden v. Salvation Army, 109 N.Y.S. 131; Danville Light, Power & Traction Co. v. Baldwin, 198 S.W. 713; Garry v. Neugaubauer (N. H.), 136 A. 751; Duke v. Parker, 118 S.E. 802; Roche v. Llewellyn Iron Works Co. (Calif.), 74 P. 147; Sawyer v. J. M. Arnold Shoe Co. (Maine), 38 A. 333; Prewitt-Spurr Mfg. Co. v. Woodall (Tenn.), 90 S.W. 623; Marigold v. Black River Tractor Co. (Sup.), 80 N.Y.S. 861; McCarty v. Spring Valley Coal Co. (Ill.), 83 N.E. 958.

Reily & Parker, of Meridian, for appellee.

The question of the negligence of the defendant in improperly parking this automobile was question for the jury.

Bacon v. Snashall, 213 N.W. 705; Hughes v. Rentschler Floral Co., 213 N.W. 625.

There is considerable evidence in this record to suggest that that testimony of the appellant in this case, together with her companion at the time of parking this car, cannot be as certain of their testimony as they pretend, and it is highly probable that their memory was at fault. At least, it was a question for the jury.

Henderson v. Horner, 135 A. 203; Perry v. Mutual Realty Corp., 255 P. 858; Fuller v. Magatti, 203 N.W. 868; Biller v. Meyer, 66 A.L.R. 436; Elliott v. Seattle Chain & Mfg. Co., 251 P. 117.

On the authority of the cases above cited, we contend that the record in this case justifies the statement that the holding of the courts in the other states, when called upon to pass upon a case like this one, have held that the trial court properly submitted the case to the jury.

While no Mississippi case has been decided on the exact question, the announcement of the law on other similar questions, has been in line with the ruling of the trial court in this case.

Fuller v. Illinois Cent. R. Co., 56 So. 783; K. C. M. & B. R. Co. v. Hawkins, 34 So. 323; New Orleans, M. & C. R. Co. v. Harrison, 61 So. 655; Berman v. Schultz, 84 N.Y.S. 292.

The testimony of the doctor was clearly competent under the rule stated in the case of Mississippi Ice & Utilities Co. v. Pearce, 134 So. 164.

The appellee in this case had the right to question the witness about his relation to the insurance company, and the evidence taken in the absence of the jury, which showed that the witness had a contract with the insurance company, fully justified the questions asked.

Argued orally by E. L. Snow, for appellant, and by Marion Reily, for appellee.

OPINION

Anderson, J.

Appellee was walking on Twenty-Fifth street in the city of Meridian at a place where he had a right to be. Appellant's car, unoccupied, ran against him and injured him. Appellee sued appellant for damages for the injury, basing his right to recover upon the allegation that the car was running wild through the negligence of appellant. There was a verdict and judgment in the sum of three thousand five hundred dollars, from which judgment appellant prosecutes this appeal.

The streets in the city of Meridian run east and west and the avenues north and south. Appellant's home is located on the north side of Twenty-Fifth street between Twenty-Seventh and Twenty-Eighth avenues. There is a decline in the street from the front of appellant's home west some distance. Appellant parked her Ford automobile in front of her home facing west. Shortly after it was parked, probably within fifteen minutes, it had run west down Twenty-Fifth street something like two blocks and had struck and injured appellee. Appellee's contention was that appellant negligently failed to properly scotch the car, resulting in its running down the street of its own momentum. Appellant's defense was that the car was properly scotched, and that it went wild as a result of the act of some intermeddler, and that the facts to establish this defense were undisputed, and therefore she was entitled to a directed verdict.

The evidence bearing on this question stated most strongly in appellant's favor was substantially as follows: Appellant testified that her home was located on the north side of Twenty-Fifth street between Twenty-Seventh and Twenty-Eighth avenues in the city of Meridian. That she had lived there seven or eight years. That Twenty-Fifth street is paved and declines from east to west. That there is a school known as Marion Park School, attended by small children, on the south side of Twenty-Fifth street between Twently-Eighth and Twenty-Ninth avenues. That on the day of appellee's injury she had driven her husband downtown to his work early in the morning. That about ten o'clock in the morning she had driven by the home of a friend, Mrs. Paul Vass. That there Mrs. Vass with her seventeen-months-old baby got in the car with her. That after driving around for the benefit of the baby, who had recently been burned about the face and arms, they came back to her home. That Mrs. Vass spent the day with her. That they had lunch and afterwards took the baby, drove around awhile, and then returned home. That later they made another trip and returned home. That they then went to the hospital for the purpose of having the Vass baby examined by the doctor. That on the return trip from the hospital she drove by an ice station on Twenty-Sixth avenue and purchased a lump of ice which was placed on the rear bumper of the car. That from there she drove directly to her home and parked the automobile in front of the house. That in parking, the car was placed on the north side of Twenty-Fifth street, facing west, with the right front wheel cut against the curb, and the gear...