Summary
In Wheat v. Teche Lines, Inc., 179 So. 553, the court stated that, "The operation of a motor vehicle at less than a fixed maximum rate of speed may be negligence under proper circumstances.
Summary of this case from Teche Lines, Inc., v. KeyesOpinion
No. 33060.
March 14, 1938.
1. AUTOMOBILES.
Under evidence that plaintiff observed defendant's bus approaching at about 45 to 50 miles per hour and stepped in front of plaintiff's truck, that bus driver had 36 feet to left of truck in which to pass, that red flags warned travelers of loose gravel but that bus passed within a foot of plaintiff and threw pieces of slag into his eye, questions whether bus driver was traveling at a reasonable speed, and whether bus driver was in such close proximity to plaintiff as to endanger life or limb, were for jury (Code 1930, section 5569, as amended by Laws 1936, chapter 309).
2. AUTOMOBILES.
The operation of a motor vehicle at less than a fixed maximum rate of speed may be negligence under proper circumstances (Code 1930, section 5569, as amended by Laws 1936, chapter 309).
3. AUTOMOBILES.
Under evidence that plaintiff observed defendant's bus approaching at about 45 to 50 miles per hour and stepped in front of plaintiff's truck, that bus driver had 36 feet to left of truck in which to pass, that red flags warned travelers of loose gravel but that bus passed within a foot of plaintiff and threw pieces of slag into his eye, whether bus driver could reasonably have foreseen the possibility of injury to any person was for jury (Code 1930, section 5569, as amended by Laws 1936, chapter 309).
4. APPEAL AND ERROR.
In determining whether defendant was entitled to directed verdict, evidence for plaintiff must be treated as proving every fact favorable to plaintiff's case which is established either directly or by reasonable inference.
5. APPEAL AND ERROR.
The evidence is to be taken most strongly against him who is granted a peremptory instruction.
6. EVIDENCE.
In action for injuries sustained when passing bus threw particles of slag into plaintiff's eye, photographs of highway where accident occurred were improperly admitted in evidence in absence of showing that they approximately represented the condition of the highway as it existed at time of injury.
APPEAL from the circuit court of Hancock county. HON.W.A. WHITE, Judge.
Gex Gex, of Bay St. Louis, and Grayson B. Keaton, of Picayune, for appellant.
When the witness was asked the direct question as to what caused the gravel to be thrown, upon objection by the defendant, the court refused to permit the witness to answer. In the absence of the jury, it was shown that the witness would testify that the speed of the bus caused the gravel to be thrown, and when the jury was recalled the question was again asked, and the court again ruled that the witness would not be permitted to answer. This ruling is assigned as error. This very question has already been before this court in the case of Teche Lines, Inc. v. Bateman, 162 Miss. 404, and decided adversely therein to the defendant in the court below.
It is a matter of common knowledge that the force with which an object is thrown diminishes in direct ratio with the increase in distance from which the object begins its flight; a piece of gravel thrown with the same force from a distance of three or four feet will strike with far greater violence than the same gravel started with the same force but traveling thirty or forty feet before contacting some other object in the course of its flight.
We submit that the testimony as to the width of the road, and to the effect that the bus could have easily turned aside a considerable distance to the left, and prevented showering plaintiff with rocks, was entirely competent.
The pictures were not authenticated in any manner, no attempt was made to show that they properly portrayed the scene of the accident at the time thereof; and all the testimony is directly to the effect that the road had been repaired after the accident, and before the pictures were taken, approximately four months having intervened between the date of the accident and the taking of the pictures. Certainly, under no circumstances were they admissible for any purpose, since all the authorities hold that in order to be admissible, photographs must first be shown to accurately portray the conditions as they existed at the time the accident occurred, or must be shown to be accurate representations of the thing testified about.
Gulfport Fertilizer Co. v. Bilbo, 174 So. 65; Gulf Research Corp. v. Linder, 170 So. 646; Tankersley v. Lincoln Tr. Co., 163 N.W. 850; Brodlen v. Lewis, 100 So. 324; Lentz v. Minneapolis St. P.S.R. Co., 160 N.W. 79; Gose v. True, 198 N.W. 528; Porter v. Buckley, 147 F. 140; McCorren v. Boston N. St. Ry. Co., 80 N.E. 477; Ford v. Mo. Pac. R. Co., 271 S.W. 967; Althoff v. I.C.R. Co., 227 Ill. App. 417; Lynch v. C.J. Larivee Lbr. Co., 111 N.E. 861.
Under the well recognized rule of law, where a peremptory instruction has been given by the trial court, even where the defendant has offered evidence, which was not done in this case, the plaintiff's testimony must be taken as true in its entirety, and every reasonable presumption and inference must be drawn therefrom, in favor of the plaintiff.
Masonite Corp. v. Dennis, 175 Miss. 855.
It is the rule in Mississippi that everything must be considered as proved which the evidence establishes directly or by reasonable inference against the party who asks a peremptory instruction.
Dean v. Brannon, 139 Miss. 312, 104 So. 173; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Wise v. Peugh, 140 Miss. 479, 106 So. 81; St. Louis S.F.R. Co. v. Nixon Phillips, 141 Miss. 677, 105 So. 478; Gulf S.I.R. Co. v. Hales, 140 Miss. 829, 105 So. 458.
The Laws of 1936, Chapter 309, fixes the maximum rate of speed at which all motor vehicles may travel upon the highway, with the exception of trucks, at fifty miles per hour.
Even though the maximum rate of speed upon highways or city streets is in excess of twenty miles per hour, yet a motorist is required to operate his motor vehicle at a rate of speed which is reasonable and proper. It is true that permission is given by the statute to operate motor vehicles other than trucks outside of cities at a rate of speed not to exceed fifty miles per hour; however, that part of the statute is subject to the limitation of the opening clause, or that is to say, the speed must always be limited to "what is reasonable and proper having due regard to the traffic and use of the highway" and must be such as not "to endanger the life or limb of any person or the safety of any property."
Snyder v. Campbell, 145 Miss. 287; Frazier v. Hull, 127 So. 775; Bateman v. Teche Lines, Inc., 162 Miss. 404.
We may concede for the purpose of this argument that the rate of speed was not more than fifty miles per hour; yet it was a question for the jury to determine whether or not under the circumstances surrounding the accident, that rate of speed was negligent.
It was the duty of the defendant to use due care to avoid injury to others rightfully upon the highway, and it was a question for the jury to determine whether or not under the facts the defendant did so.
Burcham v. Robinson, 74 So. 417.
There is no contradiction of the fact that the driver of the bus in question had warning of the bad condition of the road by reason of the red flag of caution; he could plainly see the position of the plaintiff at the edge of the highway; it was his duty to slack his speed, and pull away from the plaintiff so as to avoid the injury which occurred. It might be contended that the defendant was not charged with knowledge that the rocks would be thrown by the oversize wheels of his bus traveling at a very high rate of speed, but it is not necessary that he either know or realize the exact injury which may be caused by his negligence; it is sufficient that if by reasonable care he might have foreseen that some injury would result.
Railroad Co. v. Hicks, 91 Miss. 273, 219 U.S. 39, 55 L.Ed. 78; Teche Lines, Inc., v. Bateman, 162 Miss. 404; Deglopper v. Nashville Ry. Light Co., 134 S.W. 609; Texas P. Ry. v. Carlin, 111 Fed. 777, 189 U.S. 355, 47 L.Ed. 189; Milwaukee St. Paul Ry. v. Kellog, 94 U.S. 469, 24 L.Ed. 256; 5-6 Huddy on Automobiles, page 44.
Cases could be multiplied indefinitely on the proposition that questions of negligence and proximate cause should be submitted to a jury, or, that is to say, that what is negligence under the given statement of facts, and whether that negligence was the proximate cause of the injury sustained is always a question for the jury under proper instructions. However, we submit that even if the law was otherwise, the court would take judicial knowledge that a rapidly moving vehicle such as the bus at issue would create a vacuum drawing loose material to it and throwing it off.
San Antonio A.P. Ry. v. Mertink, 102 S.W. 153.
We submit further that even if no negligence had been proven in this case by direct testimony, the doctrine of res ipsa loquitur applies to its fullest extent.
Alabama V. Ry. case, 52 So. 703. Porteous, Johnson Humphreys, of New Orleans, La., and White Morse, of Gulfport, for appellee.
The action of the lower court was eminently correct for the following reasons:
1. It does not appear appellee had any connection with the matter or owned or operated the bus or that any one authorized or employed by appellee was in charge of or driving same.
2. The attempt to show liability on the theory the bus drove close to appellant failed because such fact, if it were a fact, could not and did not contribute to the alleged injury, and, as will be hereinafter shown by the allegations of the declaration and appellant's testimony, the bus could not have been closer than sixteen to seventeen feet from appellant and his car.
3. The road was a hard surfaced road, no unusual condition existed, and the rule contended for by appellant does not apply.
4. The rate of speed was shown to be not over fifty miles an hour and the Legislature has fixed such rate as not constituting negligence. If any particle was thrown by the bus, that is an ordinary and usual risk travelers assume.
A statute which limits the speed of automobiles in passing, is applicable only to automobiles proceeding in opposite directions, and then only when both vehicles are in motion, and not when one of them is parked.
Babbitt Motor Vehicle Law (4 Ed.), page 406.
One stopping an automobile on a highway should use ordinary care to protect the rights of other travelers, and must move off the paved or the traveled portion, if practicable, as required by the statute, and may be held guilty of negligence or contributory negligence as a matter of law, for failure to do so; otherwise, if he parks so that a sufficient portion of the highway is available for ordinary traffic, as where it is parked on the dirt shoulder of the highway, or at the extreme right of the road, with all the lights burning. It has been held that he need not put out a guard to warn approaching vehicles. The exigencies which will excuse one for the violation of the statute on this point are those under which the driver has no other choice.
Babbitt Motor Vehicle Law (4 Ed.), pages 491-492.
It would be an anomolous situation if a person could simply stop on the side of the road for some purpose of his own, and say to every motorist "you must slow down and go around me."
The suit was not based on any supposed negligence in the bus driving close to appellant. Be that as it may, it is shown by an undisputed mathematical proposition that the bus passed sixteen feet from appellant — under his own testimony.
The photographs, Exhibits "A" and "B", were properly admitted as showing the situation. They would be admissible to show the width of the road, short cut, etc., as bearing on the general situation, and as to whether the rate of speed was proper.
We respectfully submit the case here was too weak to go to the jury; no proof whatsoever was introduced to show the appellant owned, leased or was operating the bus, and the case should be affirmed.
The essential facts in this case are as follows: In April, 1937, the appellant, with a companion by the name of Miller, was driving a light truck, which he owned, in a northwesterly direction along highway No. 90, when they stopped at a well near the highway, about 14 or 15 miles from Bay St. Louis, for the purpose of getting a drink of water. The truck evidently had a cab with a door. It was stopped on the right-hand side of the highway, facing north, as close to the ditch as possible. Appellant's companion, Miller, after drinking from the well, returned to his seat in the truck; and appellant, following him and preparing to open the door to the cab, saw a bus of the Teche Lines, Inc., approaching at a rapid rate of speed, which he estimated to be about 45 to 50 miles an hour. Seeing that the bus did not turn to the left, although the bus driver had 36 feet of highway to the left on which to drive past him and his truck, or slacken its speed as it neared him, and fearing that he would be struck, plaintiff stepped in front of the left fender of his truck; as the bus passed, missing him by not more than a foot, rocks and pieces of worn slag were thrown up, some of which broke the windshield of his motor truck, while particles striking him in the eye caused him to suffer pain and anguish, to obtain relief from which the services of a doctor were required.
Witnesses estimated the highway at this point to be about 40 feet wide. Constructed of a combination of gravel and rocks, it was estimated that "several hundred feet of the subsurface of the road, of that gravel stuff, was in bad order and loose stuff on there, and that loose stuff had kicked up in piles where the cars had thrown it together."
Red flags, 18 inches square, such as are used by the highway department to warn travelers along the highway, were placed some 300 feet north and south of this faulty section of the road, as a "caution sign," there being holes in its surface, and loose gravel and small pieces of composition thereon. The witnesses did not know who had placed the flags at the points north and south of this rough and worn stretch of road, but had seen them at various times during that day. One witness testified that, in addition to the warning given by the flags, the loose gravel and slag could be seen before this rough section of the road was reached. At the time of the accident there were no other travelers at that point.
On cross-examination of the appellee, its counsel exhibited to the appellant two photographs, asking if that was the way the road lay; to which he replied affirmatively, but added that if the photograph was taken in July it did not represent the condition of the road at the time he received his injury. The appellant objected to the introduction of these two photographs, but the court allowed them to be offered in evidence, and they were marked as exhibits in the case.
Under the allegations of the declaration the above statement of facts was competent, and none of its was objected to by the appellee. When the appellant rested his case, the appellee made a motion to exclude all testimony, and to direct a verdict for the defendant, which was sustained by the court.
The principal assignment of error is in regard to the peremptory instruction given by the court, it being asserted that the facts should have been submitted to the jury to determine whether or not negligence on the part of the appellee was shown, and that the question of negligence presented was one for the jury.
The applicable part of chapter 309, Laws of 1936, amending section 5569, Code of 1930, is as follows: "No person shall operate a motor vehicle on a public highway, or street, avenue [or alley] of any city, town or village in this state at a greater rate of speed than is reasonable and proper, having due regard to the traffic and use of the highway; or so as to endanger the life or limb of any person or the safety of any property."
The evidence in this case does not show that the Teche Lines bus was being operated at a greater rate of speed than 50 miles an hour. But the statute provides that no person shall operate a motor vehicle on a public highway at a greater rate of speed than is reasonable and proper, having due regard to traffic and use of the highway, or so as to endanger the life or limb of any person. The highway, as described by the witness, for several hundred feet at that point was the equivalent of a graveled highway, though probably even more dangerous to travelers thereon. Assuming that the driver of the bus, prior to this occasion, was unaware of the condition of the highway at this point, still the red flags placed as a warning of danger, in effect, said to the driver of a motor vehicle, "Be careful, there's danger ahead!" Not only that, but with 36 feet of clear space at this point, he drove the bus, at a high rate of speed, within 1 foot of the appellant and his truck. Presumably he saw the parked truck before reaching it. He was charged, as was his master, with knowledge of the fact that loose gravel and slag would be thrown with greater velocity by the bus traveling at a rapid rate, in close proximity to one standing alongside the road. In that situation it was for the jury to say whether or not the driver of the bus was traveling along the highway at such a rate of speed as was reasonable and proper; and whether, in passing the appellant and his car, he was in such close proximity thereto as to endanger the life or limb of any person then on the highway. It was for the jury to determine from these facts whether or not, under the circumstances, considering the warning of the flags, the close proximity of the on-coming bus to the truck and the human beings, such an injury could reasonably have been anticipated by a reasonably prudent person driving on that part of the highway.
That there is no negligence when a motor vehicle is driven at less than a fixed maximum rate of speed, is not the meaning of the statute. See Teche Lines, Inc., v. Bateman, 162 Miss. 404, 139 So. 159. Driving at 45 miles an hour, or more, along this rough highway, which was evidently worn down to the sub-base, with loose gravel and slag thereon, and holes in the road, in close proximity to the appellee, together with the warning of the red flags — all this creates a question for the jury as to whether or not negligence may be inferred from these acts. In fact, the case at bar is stronger for liability than the Bateman Case, supra. It was for the jury to say whether the bus, driven over the highway under existing conditions, would throw bits of slag and rock with such force, when traveling at the rate of speed testified to, as to injure a bystander on the highway; and of course the closer he drove the bus to the bystander, the greater the force with which the flying objects would strike him. It was for the jury to say whether or not the driver exercised reasonable care, as a reasonably prudent person, in the situation as it has been described in the record; and whether or not he could reasonably have foreseen the possibility of injury to any person or property then and there. See, also, the case of Ulmer v. Pistole, 115 Miss. 485, 76 So. 522.
In determining the question of whether or not appellee was entitled to a directed verdict the evidence for appellant here must be treated as proving every fact favorable to appellant's case which is established either directly or by reasonable inference. The evidence is taken most strongly against him who is granted a peremptory instruction. Dean v. Brannon, 139 Miss. 312, 104 So. 173; American Trading Co. v. Ingram-Day Lbr. Co., 110 Miss. 31, 69 So. 707.
It is also true that it was error to permit these pictures to be offered to the jury, because there was no showing that they approximately represented the condition of the highway at that point as it existed at the time of the injury. See Gulf Research Development Co. v. Linder, 177 Miss. 123, 170 So. 646; Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 791, 174 So. 65.
The lower court erred in granting a peremptory instruction herein.
Reversed and remanded.