Opinion
No. 32358.
October 26, 1936.
AUTOMOBILES.
Owner of mule held not entitled to recovery for its death where mule turned suddenly in front of automobile of motorist who was driving at about fifteen miles an hour, and such action could not have been anticipated.
APPEAL from circuit court of Montgomery county. HON. EDW. M. LIVINGSTON, Special Judge.
A.M. Nelson and W.W. Bean, both of Jackson, for appellants.
This verdict is very patently against the overwhelming weight of uncontradicted testimony.
The court erred in overruling the appellants' motions to exclude. We submit, with deference, that the appellee failed to make out a case against either of the appellants and that these motions should have been sustained.
The court erred in refusing the peremptory instructions requested by appellants.
The proximate cause of the damage was not the speed of the automobile; it was not the manner in which the automobile was being driven; it was not due to defective headlights or any negligence whatsoever on the part of Stephens; but was the action of the mule in suddenly whirling around and running into the automobile, and as to this action of the mule Stephens had no control whatsoever.
Pounders v. Day, 151 Miss. 436, 118 So. 298.
The driver of the automobile is entitled to the reasonable use and enjoyment of the streets and highways while operating his automobile in a lawful manner, and we submit that the record in its entirety shows that Stephens was operating his automobile in a careful and lawful manner.
Ulmer v. Pistole, 115 Miss. 485, 76 So. 512; Rowlands v. Morphis, 158 Miss. 662, 130 So. 906.
J.W. Conger, of Winona, for appellee.
The record abundantly establishes the relation of master and servant and the performance of duties in line of authority by Stephens.
The entire facts, speed, position of the animal, tracks, impact, were in dispute, except the fact that predominated all the way through, that the driver actually saw the animal three hundred feet away, recognized its presence, on his side of the road, coming towards him, and he continued on from thirty-five, slowing down, to fifteen miles when he hit the mule. It is simple enough that we will argue that the driver thought the mule would move out of his path, but it did not.
We have the man stating on oath that he intended and tried to pass by the mule at fifteen miles per hour, and could have stopped but did not. This was negligence, and that was all we ever charged.
Allowing everything that the evidence shows or tends to show in favor of the appellants, still there is the question of fact for the jury to determine whether the driver was negligent and exercised the kind of care that a reasonable person under the circumstances should have exercised.
Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Section 5569, Code of 1930.
Being "alert," being "under control," "due care," do not mean at all simply the slowing down of speed, when one is observed.
Driving automobile at night at speed not permitting driver to avoid injury to persons coming within range of lights is negligence.
Frazier v. Hull, 127 So. 775.
The defendant suggested in his brief that the animal jumped onto the car. Although this feature is entirely disproven by the physical facts of the case and the sworn statements of the driver, yet, if it be conceded that such a thing was true in this case, the driver was negligent, for the reason that, "it is negligence if the driver runs at such speed and so close to the animal that he is unable to avoid it when it turns the wrong way."
Pullam v. Moore, 204 Mo. App. 697, 218 S.W. 938.
Frank Edwards, in his lifetime, brought suit in a justice of the peace court against appellants and one J.G. Stephens, for the wrongful killing of a mule belonging to Edwards, valued at one hundred and twenty-five dollars, recovered judgment for that amount, from which an appeal was taken to the circuit court, tried de novo, and a judgment was rendered there for ninety dollars, from which this appeal is prosecuted. After the appeal was taken, Frank Edwards died, and Ida Harrell was appointed administratrix, and the suit has been revived in her name.
The facts developed show that J.G. Stephens, a salesman for appellant, was riding on highway No. 51, in and around Winona and Charleston, Miss. Stephens furnished his own car; took care of his own expenses, and was paid a salary by appellant, and on the occasion in question he reached Winona, spent the day there on business for the company, and about nine o'clock P.M., started to his home in Grenada county, and while en route he struck the mule. His testimony is as follows: "Q. Now tell the jury about the circumstances of your hitting the mule, please. A. Well, I was just this side of Johnnie Heath's, across in front of Mr. Rowland's, and as I come up around a curve it is more or less straight down an incline, and I saw the mule coming up meeting me on the same side of the road I was on; naturally I was on my right side of the road; I could see the mule I judge something near three hundred feet before I got to it, and I slowed to about fifteen miles an hour, and when I got up in about fifty feet, not exactly, but thereabouts, the mule whirled and ran out in front of me, and I struck it with the right headlight, fender and right side of the radiator and snatched it down over the car. It was a big tall mule and the bumper tripped him up and he tumbled over and mashed the radiator down, and then fell over and got up and stumbled over and fell on the side of the road, and I was stopped when I hit the mule, I didn't hit him hard enough to shake me, I had slowed down to that gait, had stopped, and after that I released the brake and coasted on down to Johnnie Heath's, and we went back and my headlight had been knocked off, and we got that lying in the road, and we drug the mule out on the side of the road, and I believe that is about all that took place."
On this testimony, we do not think the appellants were liable for the injury. Nothing was done to cause the mule to turn suddenly in front of the car, and that action could not well be anticipated under the circumstances here disclosed.
It follows, therefore, that the judgment of the court below must be reversed, and the cause dismissed.
Reversed and dismissed.