Opinion
No. 31032.
February 19, 1934. Suggestion of Error Overruled March 19, 1934.
1. AUTOMOBILES.
Where child was riding on rear seat of automobile accompanied by father, driver of automobile held under no duty to watch child.
2. EVIDENCE.
Court may take judicial notice of those prominent facts in respect to automobiles which are part of common knowledge.
3. EVIDENCE.
Court judicially knows that sedan type of modern automobile has latch on each door and that door will come open only when unlatched.
4. EVIDENCE.
Evidence more substantial than mere conjecture or possibility is necessary to support verdict and judgment.
5. EVIDENCE.
Civil causes must be determined upon "reasonable probabilities," and not upon conjectures or possibilities, and "reasonable probabilities" mean those for which fair reason under facts may be found.
6. NEGLIGENCE.
Actionable fault must be predicated on action or nonaction accompanied by actual or implied knowledge of facts which make result not only probable but one reasonably anticipated.
7 APPEAL AND ERROR.
Supreme Court is not authorized to review case upon some ground or theory not submitted to jury.
8. AUTOMOBILES.
In action for injuries to child sustained through fall from automobile when door opened, evidence held insufficient for jury on question whether speed or swerve of car caused door to come open if latched, or, if unlatched, that driver knew of that condition or had reason to anticipate that door was or would be latched.
9. APPEAL AND ERROR.
Appellant is confined to position assumed in trial court, except as to jurisdictional questions.
10. APPEAL AND ERROR.
Where appellant's instructions to jury presented only one ground of recovery, and was silent as to another ground, appellant cannot, on appeal, shift to latter ground.
APPEAL from Circuit Court of Pearl River County.
Hathorn Williams, of Poplarville, for appellant.
Section 5569 of Mississippi Code of 1930 prohibits automobiles from running over the state highways at a greater rate of speed than forty miles an hour. Section 5588 of Mississippi Code of 1930 provides that where it is shown that a person was injured while the owner or operator of an automobile was at the time of the injury operating the automobile in violation of the statute a prima facie case of liability is shown.
Teche Lines v. Bateman, 162 Miss. 404, 139 So. 159; Trico Coffee Co. v. Clemons, 151 So. 175; Greene v. Maddox, 149 So. 882, 151 So. 160; Cowart v. Lewis, 117 So. 531; Westerfield v. Shell Petroleum Corp., 138 So. 561.
It is error to grant an instruction which has no substantial support in the evidence.
Williams v. City of Gulfport, 141 So. 288; Kneale v. Lopez Dukate, 93 Miss. 201, 46 So. 715; Interstate Life Accident Co. v. Cooley, 150 Miss. 502, 117 So. 267; Western Union Telegraph Co. v. Robertson, 109 Miss. 775, 69 So. 680; Davis v. Heck, 118 Miss. 74, 79 So. 59; Hickory v. Semmes, 123 Miss. 436, 86 So. 273; Easley v. Railroad Co., 96 Miss. 36, 50 So. 491.
If appellant did open the door of the car this would not bar a recovery by him if the jury further believed from the evidence that the negligence of appellee concuring with the negligence of appellant proximately contributed to the injury.
Westerfield v. Shell Petroleum Corp., 138 So. 561.
In the case at bar if there was any negligence attributable to appellant on account of the door coming open, such negligence would constitute contributory negligence and would go in mitigation of the damages, but would not bar a recovery.
Section 511, Mississippi Code of 1930.
This court has repeatedly held that a child under seven years of age is incapable of negligence, and therefore must be presumed to be incapable of negligence.
Westerbrook v. Railroad Co., 66 Miss. 560, 6 So. 321; City of Vicksburg v. McLain, 67 Miss. 4, 6 So. 774; Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617; City of Pass Christian v. Fernandez, 56 So. 329; Hines v. Moore, 87 So. 1; Pascagoula Ry. Co. v. Brondum, 96 Miss. 28, 50 So. 97.
If an instruction is given which, in express and positive terms, excludes from the consideration of the jury material evidence, such an instruction is controlling, and is misleading to the jury. There is no reconciling it with the other instructions.
Waddle v. Southerland, 126 So. 201; Godfrey v. Meridian Ry. Light Co., 58 So. 534; Dent v. Town of Mendenhall, 104 So. 82; Y. M.V.R.R. v. Hawkins, 132 So. 743: L. N.R.R. v. Cuevas, 139 So. 397; Jefferson v. Denkmann Lbr. Co., 148 So. 237.
Heidelberg Roberts, of Hattiesburg, for appellee.
There was a disputed issue of fact as to whether the automobile was travelling at an excessive rate of speed, but we respectfully submit that there was no dispute as to whether or not the excessive rate of speed caused the door to fly open. Unquestionably the boy would have been in a place of perfect safety, and whether the car was running at an excessive or moderate rate of speed, would never have received any injury unless and until the car door flew open.
It is fundamental law that where the plaintiff in a declaration charges an affirmative fact, and this fact is denied by the plea of the defendant, the burden of proof rests upon the plaintiff to prove this affirmative fact.
Miss. Oil Co. v. Smith, 95 Miss. 528, 48 So. 735; Saenger Amusement Co. v. Murray, 91 So. 459; Williams v. Delta Grocery Cotton Co., 132 So. 732.
The father had reason to anticipate that the child would probably play with the latch of the door. Knowing this human trait on the part of a child, and seeing him standing at a position next to this latch, instead of watching to see that he did not bother it, he neglected to look after the safety of his own child and turned his head to the right and enjoyed the scenery as the car travelled down the road.
The defendant had the right to assume that the child's own father would not permit him to open the door and fall out.
Argued orally by E.B. Williams, for appellant.
Plaintiff, a child five or six year old, was with his father invited to ride in the defendant's automobile, which was a four-door sedan. The defendant was on the front seat driving, and the child and his father were riding on the rear seat. After having traveled about twenty miles, and while, according to the testimony of plaintiff's witnesses, the car was being driven at a high rate of speed, on loose gravel, the car suddenly swerved, the left rear door flew open, and the child was thrown to the ground and injured. It further appears that at the time the door came open the child had left his seat and was standing near the door with his hands on the back of the front seat; but the proof shows that the defendant did not know that the child had left his proper place on the rear seat, and, since the child was accompanied on the rear seat by his father, the defendant was under no duty to watch the child. It was the defendant's duty in such a situation to watch the road ahead, and not the child in the rear. The case was submitted to the jury on the theory of the plaintiff, as hereinafter mentioned, and there was a verdict for the defendant.
Both of the instructions requested by, and granted for, the plaintiff placed the plaintiff's contention of liability on the ground that the defendant's negligence in driving at an excessive rate of speed over loose gravel in the highway caused the door of the automobile to come open, and that the coming open of the door was the proximate cause of the injury to the plaintiff. The only evidence to sustain the contention that the rate of speed caused the door to come open was that, when the car suddenly swerved, the door came open. But any such swerve as shown in this record, even at the highest speed any witness testified to, would not cause a latched door of a modern automobile of the sedan type to come open. Such a swerve, however, would cause an unlatched door to come open.
Automobiles are of such general use and form so largely a part of the daily lives and experience of our people that judicial notice may be taken of those prominent facts in respect to them which are a part of the common knowledge of every person of ordinary understanding and observation. 15-16 Huddy, Automobile Law (9 Ed.), pp. 272, 273; 1 Berry, Automobiles (6 Ed.), pp. 20-22. We therefore take judicial notice of the fact that the sedan type of the modern automobile has a latch on each door which will prevent the door coming open, and that such a door will come open only when unlatched. This we think is as well within the rule as to judicial notice as would be the fact that the outside doors of residences have locks. Moreover, these automobile bodies of the sedan type and the doors and latches are so designed and constructed that speed and swerves do not unlatch the doors, as is demonstrated day after day everywhere, provided the equipment is in good repair; and there is no suggestion that any part of the automobile here was in any respect out of order or not in good repair.
Under this record the theory that the speed and swerve of the car caused the door, if latched, to come open, is based upon conjecture, or at most a mere possibility; and it is well settled, of course, that something more substantial than conjecture or possibility is necessary to form the supporting foundation of a verdict and judgment. New Orleans N.E.R. Co. v. Holsomback (Miss.), 151 So. 720. Inasmuch as civil causes must be determined upon reasonable probabilities and not upon conjectures or possibilities, we must look only to the reasonable probabilities as disclosed by the record, and reasonable probabilities mean, of course, those for which a fair reason under the facts may be found. The probabilities are clear that the door was unlatched; and this may be reasonably accounted for by the fact that the child in standing near the door may have come in contact with the inside handle to the door, thereby causing it to come unlatched. But, in any event, it was the unlatched condition of the door that caused it to come open when the car swerved; and there is no evidence that the defendant knew that the door was unlatched, or that he had any reason to suspect or anticipate that it was or would be unlatched, and therefore no reason to anticipate that the speed or the swerve would cause the door to come open. In order that a person, doing a particular act which results in injury to another, shall be liable therefor, the act must have been of such character and done in such situation that the person doing it should have reasonably anticipated that some injury to another will probably result therefrom. Actionable fault on the part of a defendant must be predicated on action or nonaction accompanied by knowledge actual or implied of the facts which make the result of his conduct not only a probable result but a result also which he should, in view of these facts, have reasonably anticipated. D'Antoni v. Albritton, 156 Miss. 758, 766, 126 So. 836, 45 C.J., pp. 913-918.
The case as submitted to the jury comes down to this: If the door had not come open, the child would not have been injured. The door would not have come open unless it was unlatched. The defendant did not unlatch it or have any reason to anticipate that it was or would be unlatched. And thus, there being no evidence sufficient to form the foundation of a verdict that the speed or swerve of the car caused the door to come open if latched, or, if unlatched, that the defendant knew of that condition, or had any reason as a prudent man to suspect or anticipate that the door was or would be unlatched, the ground or theory upon which the plaintiff submitted his case is not maintained; and we are not authorized to review the case upon some other ground or theory not submitted to the jury.
It is the universal rule generally upheld in all appellate courts that, except as to jurisdictional questions or some such dominant question as lies at the very foundation of the case, the appellant is confined on appeal to the position which he assumed in the trial court. 2 Ency. Pl. Pr. 516; 4 C.J., pp. 710-712; Elliott App. Prac., p. 410 et seq. Any other rule would permit a litigant to submit his case to the jury on one theory; and, if unsuccessful there, secure a reversal upon some other ground than that which was so submitted, and thus try his case in parts or sections by piecemeal, to the unreasonable hurt of the public treasury in costs of successive trials. Gulf S.I.R. Co. v. Boswell, 85 Miss. 313, 321, 38 So. 43. When the appellant's instructions to the jury present one ground upon which a recovery is sought, and is silent as to another ground, it is too late on appeal to shift to the latter ground. In reviewing a verdict, we are limited to the theory of the case as presented to the jury by the appellant, Illinois Cent. R. Co. v. Sumrall, 96 Miss. 860, 867, 51 So. 545, except, as already said, where the additional question lies at the very foundation of the case.
Affirmed.