Williams v. Lumpkin

• Decision Date: 19 February 1934
• Docket Number: 31032
• Citation: 169 Miss. 146,152 So. 842
• Court: Mississippi Supreme Court
• Parties: WILLIAMS v. LUMPKIN

152 So. 842

169 Miss. 146

WILLIAMS v. LUMPKIN

No. 31032

Supreme Court of Mississippi

February 19, 1934

Division B

Suggestion Of Error Overruled March 19, 1934.

APPEAL from circuit court of Pearl River county HON. J. Q. LANGSTON, Judge.

Action by Robert Williams against W. B. Lumpkin. Judgment for the defendant, and the plaintiff appeals. Affirmed.

Affirmed.

Hathorn & Williams, of Poplarville, for appellant.

Section 5569 of Mississippi Code of 1930 prohibits automobiles from running over the state highways at a greater rate of speed than forty miles an hour. Section 5588 of Mississippi Code of 1930 provides that where it is shown that a person was injured while the owner or operator of an automobile was at the time of the injury operating the automobile in violation of the statute a prima facie case of liability is shown.

Teche Lines v. Bateman, 162 Miss. 404, 139 So. 159; Trico Coffee Co. v. Clemons, 151 So. 175; Greene v. Maddox, 149 So. 882, 151 So. 160; Cowart v. Lewis, 117 So. 531; Westerfield v. Shell Petroleum Corp., 138 So. 561.

It is error to grant an instruction which has no substantial support in the evidence.

Williams v. City of Gulfport, 141 So. 288; Kneale v. Lopez & Dukate, 93 Miss. 201, 46; So. 715; Interstate Life & Accident Co. v. Cooley, 150 Miss. 502, 117 So. 267; Western Union Telegraph Co. v. Robertson, 109 Miss. 775, 69 So. 680; Davis v. Heck, 118 Miss. 74, 79 So. 59; Hickory v. Semmes, 123 Miss. 436, 86 So. 273; Easley v. Railroad Co., 96 Miss. 36, 50 So. 491.

If appellant did open the door of the car this would not bar a recovery by him if the jury further believed from the evidence that the negligence of appellee concuring with the negligence of appellant proximately contributed to the injury.

Westerfield v. Shell Petroleum Corp., 138 So. 561.

In the case at bar if there was any negligence attributable to appellant on account of the door coming open, such negligence would constitute contributory negligence and would go in mitigation of the damages, but would not bar a recovery.

Section 511, Mississippi Code of 1930.

This court has repeatedly held that a child under seven years of age is incapable of negligence, and therefore must be presumed to be incapable of negligence.

Westerbrook v. Railroad Co., 66 Miss. 560, 6 So. 321; City of Vicksburg v. McLain, 67 Miss. 4, 6 So. 774; Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617; City of Pass Christian v. Fernandez, 56 So. 329; Hines v. Moore, 87 So. 1; Pascagoula Ry. Co. v. Brondum, 96 Miss. 28, 50 So. 97.

If an instruction is given which, in express and positive terms, excludes from the consideration of the jury material evidence, such an instruction is controlling, and is misleading to the jury. There is no reconciling it with the other instructions.

Waddle v. Southerland, 126 So. 201; Godfrey v. Meridian Ry. & Light Co., 58 So. 534; Dent v. Town of Mendenhall, 104 So. 82; Y. & M. V. R. R. v. Hawkins, 132 So. 743: L. & N. R. R. v. Cuevas, 139 So. 397; Jefferson v. Denkmann Lbr. Co., 148 So. 237.

Heidelberg & Roberts, of Hattiesburg, for appellee.

There was a disputed issue of fact as to whether the automobile was travelling at an excessive rate of speed, but we respectfully submit that there was no dispute as to whether or not the excessive rate of speed caused the door to fly open. Unquestionably the boy would have been in a place of perfect safety, and whether the car was running at an excessive or moderate rate of speed, would never have received any injury unless and until the car door flew open.

It is fundamental law that where the plaintiff in a declaration charges an affirmative fact, and this fact is denied by the plea of the defendant, the burden of proof rests upon the plaintiff to prove this, affirmative fact.

Miss. Oil Co. v. Smith, 95 Miss. 528, 48 So. 735; Saenger Amusement Co. v. Murray, 91 So. 459; Williams v. Delta Grocery & Cotton Co., 132 So. 732.

The father had reason to anticipate that the child would probably play with the latch of the door. Knowing this human trait on the part of a child, and seeing him standing at a position next to this latch, instead of watching to see that he did not bother it, he neglected to look after the safety of his own child and turned his head to the right and enjoyed the scenery as the car travelled down the road.

The defendant had the right to assume that the child's own father would not permit him to open the door and fall out.

Argued orally by E. B. Williams, for appellant.

OPINION

Griffith, J.

Plaintiff, a child five or six year old, was with his father invited to ride in the defendant's automobile, which was a four-door sedan. The defendant was on the front seat driving, and the child and his father were riding on the rear seat. After having traveled about twenty miles, and while, according to the testimony of plaintiff's witnesses, the car was being driven at a high rate of speed, on loose gravel, the car suddenly swerved, the left rear door flew open, and the child was thrown to the ground and injured. It further appears that at the time the door came open the child had left his seat and was standing near the door with his hands on the back of the front seat; but the proof shows that the defendant did not know that the child had left his proper place on the rear seat, and, since the child was accompanied on the rear seat by his father, the defendant was under no duty to watch the child. It was the defendant's duty in such a situation to watch the road ahead, and not the child in the rear. The case was submitted to the jury on the theory of the plaintiff, as hereinafter mentioned, and there was a verdict for the defendant.

Both of the instructions requested by, and granted for, the plaintiff placed the plaintiff's contention of liability on the ground that the defendant's negligence in driving at an excessive rate of speed over loose gravel in the highway caused the door of the automobile to come open, and that the coming open of the door was the proximate cause of the injury to the plaintiff. The only evidence to sustain the contention that the rate of speed caused the door to come open was that, when the car suddenly swerved, the door came open. But any such swerve as shown in this record, even at the highest speed any witness testified to, would not cause a latched door of a modern automobile of the sedan type to come open. Such a swerve, however, would cause an unlatched door to come open.

Automobiles are of such general use and form so largely a part of the daily lives and experience of our people that judicial notice may be taken of those prominent facts in respect to them which are a part of the common knowledge of every person of ordinary understanding and observation. 15-16 Huddy Automobile Law (9 Ed.), pp. 272, 273; 1 Berry, Automobiles (6 Ed.), pp. 20-22. We therefore take judicial notice of the fact that the...