Williams v. Slade

• Decision Date: 11 September 1970
• Docket Number: No. 27651.,27651.
• Citation: 431 F.2d 605
• Parties: Nell WILLIAMS, Plaintiff-Appellant, v. John R. SLADE, John S. Slade, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

431 F.2d 605 (1970)

Nell WILLIAMS, Plaintiff-Appellant, v. John R. SLADE, John S. Slade, et al., Defendants-Appellees.

No. 27651.

United States Court of Appeals, Fifth Circuit.

September 11, 1970.

Lawrence J. Smith, New Orleans, La., for appellant.

George E. Morse, Rae Bryant, Thomas L. Stennis, II, White & Morse, Gulfport, Miss., for appellees.

Before GEWIN, GOLDBERG and SIMPSON, Circuit Judges.

GOLDBERG, Circuit Judge:

This automobile accident case makes very meaningful the policy of being chary of directing a verdict for a defendant at the close of plaintiff's case in negligence actions. Such direction is particularly dangerous where, as here, there are two defendants, only one of whom is exonerated by the directed verdict, and the possibility exists that both contributed to the accident. The injuries involved in this case arose when Nell Williams, a visitor from Louisiana, went for a drive with her hostess, Willie Mae Treadwell, a resident of Mississippi. Belying her name, Mrs. Treadwell drove into the path of a car driven by John S. Slade, and Nell Williams was severely injured as a result. The accident occurred at an intersection controlled by a traffic light in Gulfport, Mississippi.

Mrs. Williams sued both Treadwell and Slade, alleging among other things that both defendants failed to keep a proper lookout, that both were traveling at an excessive rate of speed under the circumstances, and that one or the other of the defendants disregarded the traffic signal which controlled the intersection where the accident occurred.

At trial the presentation of evidence was such that at the end of plaintiff's case in chief only the plaintiff and Mrs. Treadwell had testified concerning the events leading up to the accident. As it happened, both testified that at the time the accident occurred the light was green in favor of the Treadwell automobile. At the conclusion of this evidence defendant Treadwell moved for a directed verdict on the ground that all evidence pointed to the fact that she had had a green light at the time of the accident. The district court granted the motion, saying:

"The testimony shows that this automobile in which the Plaintiff was driving entered this intersection at a rate of speed of thirty five miles per hour with a green light facing her. Well, at thirty five miles an hour, the Court takes judicial notice that that automobile was travelling fifty one point one feet per second, and she had a green light and I don\'t think she had to watch out for traffic going north. I don\'t believe that both of them could have had a green light and the Plaintiff\'s testimony at this point shows that Willie Mae had a green light and I think she had a right to proceed through there, through that intersection without interference from northbound I see no vestage sic of any evidence here to to sic submit to a Jury on the question of her negligence. * * *"

Plaintiff has appealed, claiming that the directed verdict as to defendant Treadwell was erroneous. We agree.

The standard of this circuit for granting directed verdicts was announced in Boeing Company v. Shipman, 5 Cir. 1969, 411 F.2d 365, where this court said:

"On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover\'s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury." 411 F.2d at 374.

Accord, Falcon v. Auto Buses Internacionales, 5 Cir. 1969, 418 F.2d 673; Hanover Insurance Company v. Berry, 5 Cir. 1969, 416 F.2d 279.

Evaluating the evidence at the time the directed verdict was granted in the present case, we find that under the Boeing standard the preemptory order was improper. Under the substantive law of Mississippi a motorist at a controlled intersection is charged with the responsibility of keeping a proper lookout for cars approaching the intersection from other directions even if he has the right of way. The Supreme Court of Mississippi has unmistakably announced the rule in that state regarding the duty of a motorist at a controlled intersection. In Jobron v. Whatley, 1964, 250 Miss. 792, 168 So.2d 279, that court said:

"* * * Insofar as the appellees\' having the right of way, or the right to assume that the driver of the other car would stop his car before entering the intersection, is concerned, this Court has repeatedly stated what the rule is, namely: That the motorist\'s right to assume that the driver of a vehicle proceeding toward an intersection will obey the law of the road, which requires him to stop before entering the intersection, exists only until he knows or in the exercise of ordinary care should know otherwise. * * *" 168 So.2d at 284.

It therefore appears that the trial court was in error as a matter of law when it declared in granting the directed verdict that Mrs. Treadwell had no obligation to watch out for the traffic going north, the direction in which defendant Slade was driving.

Moreover, there was evidence in the record which would have allowed the jury to conclude, had it been given the chance, that Mrs. Treadwell failed to keep the required lookout. Upon examination Mrs. Treadwell herself testified as follows:

"Q. And you never did see this vehicle, Slade vehicle?

A. I glanced it when she yelled, I looked and saw it and turned my wheel like that.

Q. But until she yelled, you had not seen it?

A. No, because I was watching the light." (Emphasis added.)

Other evidence in the record indicated that no obstruction existed which would have prevented Mrs. Treadwell from seeing the Slade vehicle had she looked in the direction of those vehicles approaching from the north. This testimony was sufficient to raise a jury question as to whether or not Mrs. Treadwell breached her duty to keep a proper lookout as she approached the intersection. It was up to the jury to decide whether Mrs. Treadwell saw or in the exercise of due care should have seen the Slade vehicle in time to avoid the collision. Kiner v. Northcutt, 10 Cir. 1970, 424 F.2d 222; Gates v. Green, Miss. 1968, 214 So.2d 828; Tippit v. Hunter, Miss. 1967, 205 So.2d 267; Jobron v. Whatley, supra; Hawkins v. Hillman, Miss. 1963, 245 Miss. 385, 149 So.2d 17. As the Mississippi Supreme Court said in Tippit v. Hunter, supra:

"* * * The driver of an automobile is chargeable with knowledge of all conditions which would be obtainable by the reasonable exercise of his faculties. It is his duty to see that which is in plain view or open and apparent and to take notice of obvious dangers.

He must be regarded as having seen what he would have necessarily seen had he been looking, and if an automobile driver fails to reasonably observe that which was apparent and within clear view, the jury can reasonably determine from the circumstances that he was not keeping a proper lookout." 205 So.2d at 271 (citations omitted — emphasis added).

Under the circumstances, therefore, the trial court committed reversible error in directing a verdict for Mrs. Treadwell. There was evidence from which reasonable and fair minded men could have concluded that Mrs. Treadwell failed to keep a proper lookout and that her failure to do so contributed to the accident. The question therefore should have been submitted to the jury. Boeing Company v. Shipman, supra. We conclude that the judgment of the trial court exonerating defendant Treadwell must be reversed and a new trial granted so that plaintiff may obtain a proper jury determination concerning Mrs. Treadwell's responsibility for the accident.

Having determined that this case must be retried as to defendant Treadwell, our final problem concerns the proper treatment of defendant Slade at the retrial. After the court granted defendant Treadwell's motion for a directed verdict at the end of plaintiff's case in chief, the trial proceeded as...