Opinion
No. 33395.
November 21, 1938.
1. AUTOMOBILES.
In action for loss of mule which was killed by owner after it was struck by automobile driven by defendant, proof that automobile was being driven with only one light in violation of statute established a prima facie case of negligence which might have been rebutted by evidence showing that violation did not proximately cause the injury (Code 1930, sec. 5575).
2. AUTOMOBILES.
In action for loss of mule which was killed by owner after mule was struck by automobile, whether operation of automobile with only one light in violation of statute interfered with motorist's ability to see mule in time to avoid accident by exercise of due care, and whether under circumstances automobile was otherwise negligently operated, were questions for the jury (Code 1930, sec. 5575).
3. AUTOMOBILES.
Mules or other live stock which are crossing public highway from pasture to bar lot are not trespassers in sense of imposing on motorist only the duty of not willfully or wantonly injuring them.
4. TRIAL.
In action for loss of mule which was killed by owner after mule was struck by automobile, where jury was erroneously instructed, as a matter of law, that owner of mule was negligent in driving mule across public highway from pasture to barn lot, jury committed no error in failing to follow the instruction.
5. AUTOMOBILES.
The provisions of neither a state-wide nor a local stock law are intended to be applicable in a case where an animal is under the control or guidance of the owner when traveling along or across a public highway.
APPEAL from the circuit court of Simpson county; HON. EDGAR M. LANE, Judge.
Edwards Edwards, of Mendenhall, for appellant.
The verdict of the jury and judgment of the court is against the law and evidence in the case.
Taking into consideration all the facts and circumstances we believe this injury to the mule was an unavoidable accident; that the presence of the second mule could not have been reasonably anticipated by the appellant and this case is governed by a case recently decided by this court, the case of Mississippi Power Light Co. v. Harrell, 170 So. 229, 176 Miss. 749.
Walker was not violating the speed limit; his brakes were good. His light was good. It was not shown that by reason of the fact that he had only one light contributed to the injury. Appellant was on his right-hand side of the road. The appellant had the right of way over the mules.
Babbit Motor Vehicle Law, page 1120, par. 1589.
The appellant had no warning of the approach of the mule trespassing on the highway. The appellee was guilty of gross negligence, and the appellant owed no duty other than to use ordinary care and caution.
Babbit Motor Vehicle Law (4 Ed.), page 1122, par. 1593.
Sections 5572 and 5574 have no application to the facts in this case for the reason the mules were not being driven under control in the highway. The appellant was under no duty to keep his machine constantly under control and be on the alert for and anticipate the presence of these animals which were trespassing. He was guilty of no act which contributed to the injury of the mule. The sole proximate cause of the injury was the negligence of the appellee in driving them across the road.
Ovie L. Berry, of Mendenhall, and Martin Farr, of Prentiss, for appellee.
Since the case was one for the jury on the facts and the law as given by the court, this court will not disturb its verdict if there is any believable evidence upon which the verdict can rest. This court has always manifested a reluctance to take a case from the jury and will not unless the evidence is overwhelmingly against the righteousness of the jury's verdict.
Section 5575, Code 1930, provides that automobiles traveling at the hour shown here by the evidence (and there is no dispute in the evidence that the hour was one requiring lights) must have "at least two lights, showing white lights, visible at least 200 feet in the direction toward which such motor vehicle is proceeding." Defendant was in flagrant violation of this statute. The jury could well believe that if he had had two lights visible at least 200 feet ahead he would have seen both these mules. He saw neither one until he was right on the first one and then there was dust, as he admits. These mules crossed from his right. It was his duty to be on the lookout and he had no right-of-way, and especially is this true in passing houses and barns where there is always danger of killing a child or injuring stock.
The driver of an automobile must keep his machine constantly under control; he must continue on the alert for pedestrians and others using the streets and must anticipate their presence. To assume the way is clear is not his right.
Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Harper v. Wilson, 163 Miss. 199, 140 So. 693.
We most respectfully submit, on the fact of driving with but one light, that this was a question for the jury to determine whether or not the driving with one light was a proximate cause of the injury or contributed thereto.
Solomon v. Continental Baking Co., 160 So. 732; Marx v. Berry, 168 So. 61.
As to negligence of appellee, there is no fact in this case, we submit, showing negligence of appellee, but if there is then that would not bar appellee nor would it free appellant of liability. Contributory negligence is no longer a complete defense in this state, Section 512, Code of 1930, and besides that there is no question of contributory negligence in this case, despite the instruction given the defendant, for the reason contributory negligence must be specially pleaded and there is no special plea of any contributory negligence.
White v. Weitz, 152 So. 484.
On appeal from a judgment for $100 recovered by appellee on verdict of a jury rendered in a justice of the peace court of Simpson county, a like judgment was recovered in the circuit court. The judgment was for damages caused by a fatal injury to a mule by an automobile driven by appellant while passing the farm home of appellee one evening shortly after dark. The automobile was traveling with only one light in violation of Section 5575 of the Code of 1930, and the proof of which fact established a prima facie case of negligence, which might have been rebutted however by evidence showing that the violation of the statute did not proximately cause or contribute to the injury and damage complained of. On the issue of whether the automobile was being negligently operated as to its rate of speed and the care exercised by the driver the proof disclosed that appellee immediately before the accident had turned a pair of mules out at his pasture gate adjacent to the public highway in order that they might cross over to the barn lot on the other side. According to the evidence on behalf of appellee they could be seen in front of this gate for a distance of at least seventy-five yards by a person approaching in an automobile. On behalf of appellant it was shown that he saw one of the mules cross the highway, which caused a dust to be raised, but that he did not see the mule in question until it was too late to avoid the accident. It appears that this mule became frightened at the automobile and turned down the highway ahead where the automobile struck it and broke its legs to such an extent that it was necessary for it to be killed. A negro who was in the automobile with the appellant saw both of the mules. It will thus be seen that it was a question for the jury as to whether the operation of the automobile with only one light interfered with the appellant seeing the mule in time to avoid the accident by the exercise of due care, and as to whether under all the facts and circumstances the automobile was otherwise negligently operated. Harper v. Wilson, 163 Miss. 199, 140 So. 693.
We need not say more, except to answer the contention urged here that the mule was a trespasser on the highway at the time of the accident. A few words in defense of the charge made against the mule might be appropriate here in order to make it clear that mules or other livestock do not become trespassers in the sense of imposing on automobile drivers only the duty of not wilfully or wantonly injuring them when they undertake to cross a highway under the circumstances shown in this case. If it may be conceded that the mule in question had a right to be in the pasture by day and in the barn by night when not otherwise employed, as compensation in return for his labors on a farm, it would be difficult to surmise as to how he could enjoy this privilege without crossing the highway where it is being maintained between these two places by the State in exercise of its sovereignty and right of eminent domain to locate and establish highways.
Instructions most favorable to the appellant were granted on the trial, and the jury was erroneously instructed, as a matter of law, that the appellee was negligent in driving the mules across the highway. The jury evidently took a contrary view, and since the instruction was incorrect there was no error committed by the failure to follow it. This interpretation of the law would deprive those living along the public highways of the reasonable use and control of their property. The provisions of neither a statewide nor a local stock law are intended to be applicable in a case where an animal is under the control or guidance of the owner when traveling along or across a public highway.
The evidence justified the court below in submitting the issue of negligence of appellant to the jury, and its verdict should be upheld.
Affirmed.