Wright v. Standard Oil Company

• Decision Date: 02 December 1970
• Docket Number: No. EC 6933.,EC 6933.
• Citation: 319 F. Supp. 1364
• Parties: Mr. and Mrs. Albert N. WRIGHT, Mother and Father, Respectively, of Douglas Wright, a Minor, Plaintiffs, v. STANDARD OIL COMPANY, Inc., a Kentucky Corporation, D. L. Collums, and Dennis E. Tutor, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

319 F. Supp. 1364

Mr. and Mrs. Albert N. WRIGHT, Mother and Father, Respectively, of Douglas Wright, a Minor, Plaintiffs, v. STANDARD OIL COMPANY, Inc., a Kentucky Corporation, D. L. Collums, and Dennis E. Tutor, Defendants.

No. EC 6933.

United States District Court, N. D. Mississippi, E. D.

December 2, 1970.

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Charles C. Finch, Batesville, Miss., Harold A. Katz, Chicago, Ill., for plaintiffs.

Ralph Holland, Tupelo, Miss., Watkins & Eager, Jackson, Miss., for defendants.

MEMORANDUM OPINION

KEADY, Chief Judge.

In this Mississippi-based diversity action, Albert N. Wright and wife, Grace Wright, citizens of Indiana, sue three defendants, Standard Oil Company, Inc., a Kentucky Corporation, D. L. Collums, Standard Oil's local agent in Lee County, Mississippi, and Dennis E. Tutor, company truck driver, for doctors', hospital, nursing and other medical expenses, and also for loss of services during minority, arising from bodily injuries sustained by their minor child, Douglas Wright. After a three-day nonjury trial and submission of briefs, the matter is now ripe for decision, the court having carried with the case motions for summary judgment filed by each side.

The accident in question occurred in Lee County, Mississippi, on July 5, 1963, at about 9:45 a. m. when Tutor, acting in the course of his employment for the other defendants, was operating a gasoline truck north on U. S. Highway 45 at or near the south edge of the city limits of Tupelo. Traveling at a speed of not more than 32 m. p. h. in an area having a posted 45 m. p. h. speed limit, Tutor was in the east lane for northbound traffic, at a point opposite Herring's Grocery Store located west of the highway, when plaintiffs' five-year old child, Douglas Wright, crossed the highway on foot going easterly and was struck by the truck as he crossed the centerline of the highway and was about to enter upon the east lane. U. S. Highway 45 is a two-lane concrete surface highway 20 feet in width with a graveled shoulder of varying widths on each side. It was a clear, bright day and the gasoline truck was carrying a load of 6300 gallons. Tutor was familiar with the vicinity, having made almost daily business trips on this highway, and was aware that from Verona north to Tupelo there was almost continuous residential and commercial development fronting the highway.

On this occasion Tutor, whose position in the cab placed him 7 feet above ground level, first noticed several small children on the east side of the highway almost directly opposite Herring's Grocery Store; he momentarily took his foot off the gas but as these children moved back from the highway, he did not blow his horn or apply brakes. Deeming that both lanes ahead of him were clear, he put his foot back on the gas and proceeded forward. Tutor did not observe the Wright child in motion at any time while he was west of the highway, or on the west graveled shoulder, or in the west traffic lane, nor until almost the moment of impact when the truck's left front fender, just below the headlight, struck the child, who was carrying a carton of milk under his arm. The child was knocked forward approximately 12 to 15 feet with milk spilled on the concrete to the point where the child's body lay in the northbound lane several feet east of the centerline. Spilled milk was also noted on the truck's left headlight. The child sustained grievous personal injuries, involving a severance of the spinal cord, intracranial injuries, broken right leg and extensive other injuries which rendered him totally disabled and have resulted in his protracted hospital, medical and nursing care since the date of the accident.

The evidence discloses that Douglas Wright had accompanied his parents on a trip from Gary, Indiana, and had arrived the night before at the home of relatives who resided on the east side of U. S. Highway 45 directly opposite Herring's Grocery Store. The following morning, when Douglas wanted milk for his breakfast, his mother gave him money and told him to get his father, who was then at the north end of his brother's front yard assisting in cleaning a truck, to take him across the highway to purchase milk at the grocery store. The boy, clad only in swimming trunks and barefooted, relayed this information to Albert N. Wright, who took Douglas in his arms and walked westerly across the highway to the store which fronted upon the highway about 60 feet west of the westerly edge of the concrete surface. Wright put his son on the ground near the store's entrance, and the child went at once into the store. Without waiting for his son, Wright then recrossed the highway, proceeding somewhat northeasterly to rejoin his brother in cleaning the truck. Wright did not see his son when he came out of the store and was oblivious not only to his son's actions but also to existing highway traffic conditions, despite the fact that he knew it was generally a heavily traveled highway. Approximately 10 minutes after he had left his son in front of the store, Wright's attention was attracted by noise caused by the truck which, having struck Douglas, was braking and stopping. Both Wright and his wife knew that it was dangerous for their young son to attempt to cross the highway unattended. Wright testified that he told Douglas not to recross the highway alone but either get Gary Wright, a kinsman who worked inside Herring's Grocery Store, to assist him or call him. However, Wright did not propose to wait for his son to buy the milk and come out of the store, and left almost immediately.

Plaintiffs contend that defendants' truck driver failed to keep a proper lookout as, in the exercise of ordinary care, he should have seen Douglas Wright in time to sound his horn and slow, swerve or stop his truck, and these negligent omissions were the proximate cause of the accident; that neither plaintiff was guilty of negligence which contributed to the accident, either to bar recovery or to reduce allowable damages under Mississippi's comparative negligence statute;¹ and, finally, under applicable law, the conduct of Albert Wright, if negligent, may not be imputed in any way to Grace Wright, the other parent, who also asserts a right of action, independent of her husband, to recover medical expenses she contracted for and nursing care she alone rendered. Defendants, in addition to denying negligence on the part of the truck driver, argue that Albert Wright, as father, solely possesses the cause of action, and he is barred from recovery because he assumed the risk of injury to his son by exposing him to known danger; or, in the alternative, the actions of plaintiffs, both singly and jointly, constituted negligence and were a contributing, proximate cause of the accident, thus reducing allowable damages in proportion to such contributory negligence; and the cause of action being vested solely in her husband, Grace Wright has no separate cause of action for any elements of damage, independent of the claims of Albert Wright. In addition to these basic questions, there is vigorous disagreement as to what items of recoverable damage have been established by the evidence.

I.

The primary issue, which is a fact question, is whether defendants' truck driver was negligent in his failure to observe Douglas Wright's presence upon the highway in time to take action to avoid the accident. Defendants contend that Tutor was not negligent in this regard because the child ran directly from behind a Tupelo city bus parked on the west shoulder, into the roadway and against the side of the truck's left front fender, so as to afford the driver no fair opportunity either to see the danger or take any evasive action.

Resolving the conflicts arising from the evidence, the court finds that as Douglas Wright came from the store, he was carrying a carton of milk under his arm, and ran at a 45° angle northeasterly across the graveled driveway and other open area in front of Herring's store toward the L. E. Wright truck shop. No bus or other vehicle was parked on the west side of the highway obscuring the presence of the child as he continued to run onto the west graveled shoulder looking at his father who was east of the highway; and without halting the child continued his running across the 10-foot west traffic lane directly into the path of defendants' northbound truck.

A northbound motorist traveling not more than 75 feet behind defendants' truck saw Douglas Wright when he was approximately 20 feet west of the pavement, observing that, as the child ran, he was not looking for northbound traffic. From Herring's Grocery there was then an unobstructed view to the south for a distance of several hundred yards with no vehicles parked directly in the line of sight, nor other objects blocking clear view except a fairly large tree and a mail box (38? in height) in front of the grocery store; the tree was 20 feet and the mail box was 17 feet from the western edge of the pavement. There is an evidentiary basis for concluding, as we do, that the child's presence was observable by one in the position of Tutor for at least 5 seconds. During that time interval, Douglas Wright ran a distance of not less than 27 feet in open view of the truck driver before reaching the center of the highway; and one-half of the distance so traveled was definitely within the highway right of way; and for that same interval the truck, moving at 32 m. p. h., traveled approximately 230 feet. Yet Tutor was wholly unaware that the child was running toward his lane, and he did not, prior to the impact, blow his horn, apply brakes, or slow his truck in any manner. Had he seen the danger, Tutor stated he could have stopped the truck at its rate of speed within a distance of 45 feet; and when brakes were actually applied the truck traveled 65 to 70 feet beyond the point of impact.

The physical facts clearly demonstrate that, contrary to defen...