Opinion
No. 35345.
May 10, 1943. Suggestion of Error Overruled June 7, 1943.
1. AUTOMOBILES.
Motorists on through highways cannot proceed on assumption that they have right-of-way at any undiminished speed and that those who have first arrived, and are about to cross at intersection, must yield so long as driver on through highway has appeared within sight, and regardless of his speed.
2. APPEAL AND ERROR.
In wife's action for injuries sustained when automobile driven by husband on through highway collided with defendant's automobile crossing highway, verdict for wife was contrary to weight of evidence.
APPEAL from circuit court of Rankin county, HON. PERCY M. LEE, Judge.
Joe Sid Mize and Frank F. Mize, both of Forest, and J.R. East, of Brandon, for appellant.
The undisputed evidence shows that appellant, O.G. Jones, had practically crossed the intersection and was in old U.S. Highway 80 when the automobile in which appellee was riding struck him. The undisputed evidence shows that Martin Carter did not have control of his automobile and that he ran off the highway to strike appellant. Appellee's own witnesses substantiate the non-liability of appellant. Appellant entered the intersection carefully, prudently, and lawfully. Under the law and decisions, Carter should have allowed him to proceed across. Appellant was entitled to the right-of-way.
Coca Cola Bottling Works of Greenwood et al. v. Hand, 186 Miss. 893, 191 So. 674; Myers v. Tims, 161 Miss. 872, 138 So. 578; Gough v. Harrington et ux., 163 Miss. 393, 141 So. 280; Whatley v. Boolas, 180 Miss. 372, 177 So. 1; Avent v. Tucker, 188 Miss. 207, 194 So. 596; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Terry et al. v. Smylie, 161 Miss. 31, 133 So. 662; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Kullman Co. v. Samuels, 148 Miss. 871, 114 So. 807; Laws of 1938, Ch. 200, Secs. 51(a) (c), 70 (a), 72(a).
The case at bar should be reversed and remanded because the verdict of the jury is contrary to the overwhelming weight of the evidence.
Universal Truck Loading Co. v. Taylor et al., 174 Miss. 353, 164 So. 3.
In the case now before the court there is no dispute as to the physical facts and there is no dispute as to the point where the collision occurred. It is undisputed that appellant arrived first at the intersection and had practically crossed same. Surely, if the court reversed the case of Universal Truck Loading Co. v. Taylor et al., supra, on the ground that the verdict was contrary to the weight of the evidence, then the case at bar must be reversed for the same reason.
In the case at bar, it is immaterial whether or not Jones gave a signal that he was going to use the intersection. The uncontradicted testimony shows that Mr. Carter, the driver of the car in which Mrs. Carter was riding, saw Mr. Jones' car as he left the store. Mrs. Carter saw the car, both Mr. and Mrs. Carter saw the car's presence in the highway, Mrs. Carter did not tell her husband to slacken his speed and did not caution him about the presence of Mr. Jones' car, but she was content for Mr. Carter to drive on at a high rate of speed when there was a hazard that was visable and when the car driven by Jones was in the intersection and had practically cleared it. It was unnecessary for any signal to be given as the presence of Mr. Jones' car, it being seen by both Mr. and Mrs. Carter, was ample notice.
Spilman v. Gulf S.I.R. Co., 173 Miss. 725, 163 So. 445; Gulf, M. N.R. Co. v. Holifield, 152 Miss. 674, 120 So. 750; C.C. Moore Construction Co., Inc., v. Hayes, 119 F.2d 742.
J.C. Murray, of Brandon, and Jackson, Young Friend, of Jackson, for appellee.
The declaration charges that the accident occurred as the result of the negligence of the appellant when he, appellant, negligently ran his automobile across the south lane of the highway onto the north lane of said highway in front of the car in which plaintiff was riding.
The evidence discloses that at the time of this accident, on February 18, 1941, Mrs. Carrie Carter, hereinafter referred to as appellee, was riding as a guest in a car driven by her husband; that they were traveling in a westerly direction on what is known as new Highway 80 between Morton, Mississippi, and Pelahatchie. New Highway 80 travels in an easterly and westerly direction and leaves the former route of old Highway 80 some three miles east of Pelahatchie, Mississippi, and near what is known as Abernathy's store, turning gradually in a southerly direction to pass over the Y. M.V.R.R. Company tracks, thence easterly to Morton. It appears that as the car in which appellee was riding, going westerly, came over a hill on the east side of Abernathy's store, said store being on the south side of new Highway 80, another car was seen leaving said store in an easterly direction as though it would enter new Highway 80 and travel on toward Morton, Mississippi, but as the car in which appellee was riding approached within 43 feet of the turnout into old Highway 80 the Jones car suddendly and abruptly changed its course and turned in a north or northeasterly direction and directly across, toward the east side of the turnout to old Highway 80, and directly in front of the car in which appellee was riding.
Appellee testified and Mr. Marvin Carter, her husband and driver of the automobile in which she was riding, testified that appellant's car approached the highway at an angle as if it would continue east on New Highway 80, a paved highway, on toward Morton, Mississippi, and abruptly and suddenly turned in front of them when they were only a distance of some 50 feet away. Even though it may be urged that Mr. Carter may have been concurrently negligent with the appellant, this would not preclude appellee's right to recover for her injuries against appellant. Appellant's entire argument is based upon the fact that appellant had proceeded across this highway in the regular course of traffic, while all of the evidence points to the fact that he had proceeded in an easterly direction toward Morton until he had passed the turnout from new Highway 80 into old Highway 80, and then he proceeded or attempted to turn into said old Highway 80; that he attempted this turn at a time when the car in which appellee was riding was only approximately 50 to 75 feet away at most, and he did so, according to the testimony of the appellee and the witness Carter, without coming to a stop and without giving any signal of his intention to turn to the left. Under such circumstances it is submitted that the court did not err in refusing to give a peremptory instruction for appellant.
Lee County Gin Co. v. Middlebrooks, 161 Miss. 422, 137 So. 108; Bufkin v. Louisville N.R. Co., 161 Miss. 594, 137 So. 517; Mississippi Power Light Co. v. Smith, 169 Miss. 447, 153 So. 376; Westerfield v. Shell Petroleum Corporation et al., 161 Miss. 833, 138 So. 561.
The case at bar might be controlled by the case of Coca Cola Bottling Works of Greenwood et al. v. Hand, 186 Miss. 893, 191 So. 674, cited by appellant, if appellant had left Abernathy's store and proceeded directly across and into old Highway 80, but the appellant left the store, traveled east, entered new Highway 80, traveled to a point almost past the turnout into old Highway 80 from new Highway 80 as though going on east on this pavement and then abruptly turned in, on, across the pavement and directly in front of the car in which appellee was riding at a time when it was only about 50 feet away. Appellee and her witnesses say that he gave no signal whatsoever. Appellant says that he did give a signal. Appellee and her witnesses say that he didn't stop before making the turn. Appellant also says he didn't stop, but proceeded on across the highway. Under such facts surely it cannot be doubted but that the determination of this case was for a jury.
This case should be and is controlled more by the law of the road with reference to meeting and passing than by the law of the road with reference to entering and crossing an intersection. It is controlled more by the case of Westerfield v. Shell Petroleum Corporation et al., supra, than by the case of Coca Cola Bottling Works of Greenwood et al. v. Hand, supra.
Compare Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Aycock v. Burnett, 157 Miss. 510, 128 So. 100.
It is generally held that a traveler upon the highway may occupy and use any part of the road he desires when it is not needed by another whose rights are superior to his own. In fact, his right to travel on either side of the road is asserted to exist except as against one coming from the opposite direction. When he meets another traveler, he must, if he is traveling upon his right side, remain there, or if he is traveling upon his left side he must turn to the right in order to give the other an opportunity to pass. Failure to do so is negligence, or at least prima facie evidence of negligence.
5 Am. Jur. 661, Sec. 285.
It is submitted that under such circumstances the speed of the Carter car was not unreasonable, and if it constituted negligence at all it was merely a concurrent or contributing cause of the appellee's injuries and would not preclude recovery against appellant.
Evans Motor Freight Lines et al. v. Fleming et al., 184 Miss. 808, 185 So. 821.
Compare Cox v. Dempsey, 177 Miss. 678, 171 So. 788.
Under such circumstances we submit that even if it be said that the appellant left the store and proceeded to cross the highway by the most direct route, the negligence of said appellant in failing to keep a proper lookout, in failing to give any signal, under the conflicting evidence, in failing to stop before entering and crossing said highway and in not having his car under proper control would be a question for the determination of a jury.
Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Aycock v. Burnett, supra; Terry v. Smylie, 161 Miss. 31, 133 So. 662; Teche Lines v. Bateman, 162 Miss. 404, 139 So. 159.
A driver of an automobile must be alert at all times for other automobiles using the highways and streets.
Graves v. Johnson, 179 Miss. 465, 176 So. 256.
A motorist should exercise care and diligence when proceeding upon a much traveled crossing and should stop and look before entering thereon.
Avent v. Tucker, 188 Miss. 207, 194 So. 596.
Taking the testimony of appellant as true, it still remains that he left the Abernathy store, proceeded to the highway, and blindly proceeded across without stopping and without looking to the right or the left. For if he had looked certainly he would have seen the car in which appellee was riding. Appellant says he gave a signal. The witnesses for appellee and appellee say that he did not give any such signal of his intention to turn left and in front of the Carter car. Surely under the conflicts in the testimony and under the physical facts as they appear of record it was for the jury to determine as to whether any such signal was necessary or whether such a signal was given.
Kullman Co. v. Samuels, 148 Miss. 871, 114 So. 807.
Appellant admits that he didn't stop before proceeding across the highway, and surely it cannot be doubted that it was his duty to so stop before proceeding across a much traveled paved main highway.
Avent v. Tucker, supra.
Under such testimony, as we have it on this trial, with the map showing by green line the exact course that appellant took, the testimony of appellant that he was traveling about 20 miles an hour when he hit new Highway 80, evidence that he did not stop, did not give a signal and was not keeping a proper lookout, it is submitted that this case was one peculiarly within the province of the jury.
Genola v. Ozburn et al., 194 Miss. 235, 11 So.2d 910.
It is submitted that the verdict of the jury is not contrary to the overwhelming weight of the evidence. It is elementary that the court will not reverse a case as being against the overwhelming weight of the evidence unless the court can say with confidence that the verdict is manifestly against all reasonable probability.
Faulkner v. Middleton, 186 Miss. 355, 190 So. 910.
This is the second appeal of the same case. The facts except as to minor details are set forth in the opinion on the former appeal, Jones v. Carter, 192 Miss. 603, 7 So.2d 519, and will not be restated here. We are no more impressed with the merits as regards the plaintiff's action than we were on the consideration of the first record, which we have carefully compared with what is shown on the present record. We are impressed now as we were then, that what we have here is simply another case of that which is seen every day by any who travel in automobiles on the streets or highways of this state, or who as pedestrians observe that travel, namely, that many, if not most of those who are proceeding upon through highways, do so upon the arrogated assumption that they have the right to drive thereon at any undiminished speed which they may elect for themselves and that those who have first arrived, and are about to cross, at an intersection must yield so long as the driver on the through highway has appeared within sight, and regardless of the speed at which he is driving. This is not the law as, in substance, we pointed out in the former opinion.
But appellee says that by the testimony in her behalf on the second trial, the evidence has been reshaped in such manner as to avoid the effect of the opinion on the first appeal. The matter of detail in which the testimony has been reshaped presents a factual contention which within itself is contrary to all reasonable probability. We therefore again reverse on the ground that the verdict is against the manifest weight of the evidence, reasonably and impartially considered, and add only that there was no error in the court's refusal of the two instructions about which appellant has complained.
Reversed and remanded.