October 30, 1939. Suggestion of Error Overruled November 27, 1939.
Where truck allegedly came up from side road on and halfway across concrete highway, while automobile was approaching the intersection at distance of about 35 yards, the truck should have been given sufficient time to proceed across the intersection, or at least to clear the right-hand portion thereof, before the automobile entered intersection.
In automobile driver's action for injuries suffered in attempting to avoid collision with truck entering highway from side road, evidence held not to show that truck was approaching intersection at excessive speed or violating statute governing approaches to crossings. (Code 1930, section 5571.)
An automobile driver traveling upon right of way thoroughfare is not entitled to cross intersection ahead of truck approaching from side road in proper manner unless he had approached the intersection at approximately the same time.
The principle that drivers on favored thoroughfare have no valid right to proceed at full speed so long as they have come within sight of crossing is especially applicable in absence of showing that thoroughfare had the legal status of having the right of way.
In automobile driver's action for injuries suffered after suddenly applying brakes to avoid collision with truck entering highway from side road, evidence that after brakes were applied the automobile traveled from 200 to 279 feet before overturning, burning and blowing out two tires, required conclusion that automobile speed was so rapid that application of brakes would have caused the wreck even though truck had stopped where automobile driver first saw it, in view of data concerning distances within which automobiles going at various speeds can stop.
In automobile driver's action for injuries suffered after applying brakes suddenly to avoid collision with truck entering highway from side road, instructions that truck owner and driver would be liable if it appeared to automobile driver that truck would reach the intersection before he did, thus ignoring jury's right to believe that automobile driver saw the truck 500 feet from the intersection, and assuming without substantial evidence that jury might believe that truck was running at reckless speed, were erroneous.
In automobile driver's action for injuries suffered after suddenly applying brakes to avoid collision with truck entering highway from side road, evidence held to establish that driver's failure to have automobile under proper control was sole proximate cause of the accident, necessitating peremptory instruction for truck driver and owner.
APPEAL from the circuit court of Leflore county; HON. S.F. DAVIS, Judge.
Osborn Lott and Harry Diamond, of Greenwood, for appellants.
The first assignment of error relates to the refusal of the court below, at the close of the evidence, to give the jury a peremptory instruction to find for the appellants.
Chapter 200 of the Mississippi Laws of 1938, being the new Motor Vehicle Act, did not go into effect until after the date of this accident. The statutes applicable to the case at bar are those in effect previous to the adoption of the Act of 1938.
The question as to which car had the right-of-way at the intersection herein is governed by Section 5571, Mississippi Code of 1930.
There is no stop sign of any kind at the intersection of the Shellmound gravel road with Highway 49-E, and therefore there is no statute giving the right-of-way to cars traveling on either of the two roads. Under these circumstances, it is settled by numerous decisions of this court that the car first approaching and entering the intersection had the right-of-way.
Even if appellee's contention that the truck got into the intersection be conceded, it, nevertheless, clearly appears from the appellee's own testimony and the decisions of this court that the truck had the right-of-way and that its act in entering the intersection was not negligence. We submit further that the evidence clearly demonstrates that the accident and resulting injury to appellee was due, first, to appellee's refusal, until it was too late, to slow up and yield the right-of-way to the car which had it; and, second, to appellee's inability to stop or control his own car when he did finally, 144 or 115 feet from the intersection, decide not to "hog" the right-of-way. Appellee's inability to stop or control his car was, of course, due to a combination of excessive speed and defective brakes.
The rule announced in all of the decisions where accidents have occurred at a time when trains were being operated at a rate of speed in excess of the statutory limit, and which required that the rate of speed must have been the proximate cause of the injuries complained of, applies in the decision of the question of liability in the case at bar.
The emergency was caused by appellee's excessive speed, and the law is well settled in all jurisdictions that a party cannot urge an emergency or sudden peril as an excuse for a mistake of judgment where the emergency or sudden peril was of his own making.
This court has announced in a long line of unbroken decisions that it is the duty of the driver of a motor vehicle on a public highway to keep his motor vehicle under control at all times and to drive at a rate of speed which will enable him to avoid injury to pedestrians and other vehicles who should come under his observation.
Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Aycock v. Burnett, 157 Miss. 510, 128 So. 100; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Daniel v. Livingstone, 168 Miss. 311, 150 So. 662; Terry et al. v. Smylie, 161 Miss. 31, 133 So. 662.
If the appellants in the case at bar are held to be liable to the appellee for the natural results of appellee's own speed and inability to control his car, then it almost means that the driver of any car so unfortunate as to be present when a speeding motorist overturns is liable for the resulting injuries to the speeding motorist.
The appellee neither asked for or obtained any instructions as to the effect on liability of the truck getting on the concrete at the intersection, if it did get there. All of appellee's instructions presuppose that the truck stopped on the gravel road before entering the intersection and never got in the intersection. They are all directed to the proposition that, even though the truck did not get in the intersection, the appellants are liable if they so drove their truck on the gravel road as to lead appellee to believe that they were going to get there.
It is elementary law that it is error to grant an instruction that has no substantial support in the evidence; and that where such instruction is given and the evidence is sufficient to sustain a contrary verdict, the case will be reversed on that error alone.
Even conceding for the sake of this argument only that the evidence does not conclusively show that plaintiff was driving imprudently and unreasonably, but merely raises an issue of that point, it is still error for the court to assume and state in the instruction a conclusion with reference thereto.
Jackson Light Traction Co. v. Taylor, 112 Miss. 60, 72 So. 856.
We have made a careful search of the authorities, and we are unable to find any mention of the "appeared to exist" emergency doctrine about which the court instructed this jury. If an emergency existed, then the emergency doctrine might be applicable; if no emergency existed, then the emergency doctrine could not be applicable. The law does not deal in speculation.
An instruction should tell the jury what the law is and leave the jury to find the facts.
There is an irreconcilable conflict between two instructions given for appellee and two of those given for appellants.
Kansas City M. B.R. Co. v. Lilly et al., 8 So. 644; May v. Culpepper, 177 Miss. 811, 172 So. 336; L. N. Railroad Co. v. Cuevas, 162 Miss. 521; Chapman v. Copeland, 55 Miss. 476, 478; Branson, Inst. to Juries (2 Ed.), 89; I.C.R.R. Co. v. McGowan, 92 Miss. 603, 46 So. 55; Hinds v. Lockhart, 105 So. 449; Jefferson Standard Life Insurance Co. v. Jefcoats, 164 Miss. 659, 143 So. 842; Jackson v. Leggett, (Miss.), 189 So. 180.
W.H. Montjoy and Alfred Stoner, both of Greenwood, for appellee.
The statute required that the driver of the coca cola truck be exceptionally careful.
Code 1930, Sec. 5571.
We submit that it is self-evident that the driver of the coca cola truck did not regard the law. He did not regard the traffic that was then upon the highway 49-E, but on the contrary, suddenly burst into rapid speed and recklessly misled and menaced the lives of those then traveling on the highway.
Care is required of each driver and under our comparative negligence statute, if there is any neglect on the part of the defendant, no matter if the plaintiff is partially negligent, then the defendant is liable.
The proof shows that the dodging of the truck was the direct cause of the injury. In a very recent Mississippi case, our court in a decision relative to proximate cause wherein the blinding lights of a truck caused the driver of an automobile to run over pedestrians who at that time walked along the shoulder of the concrete highway, held that the blinding lights of the truck was the proximate cause of the death of the pedestrian, even though the driver of the automobile whose eyes were blinded by the lights of the truck was also negligent in maintaining a rather high rate of speed during the time that his eyes were blinded.
We of course realize that there was no posted stop sign to deter the speed of either party. However, we submit that the statute which required exceptional caution when traversing a steep ascent and when turning a sharp curve, was tantamount to the warning of a stop sign.
McNulty v. Joseph Horne Company (Pa.), 148 A. 105; Madden v. Peart (Wis.), 229 N.W. 57; Consolidated Coach Corporation v. Hopkins (Ky.), 37 S.W.2d 1; Jaffe v. Spata (N.J.), 157 A. 135; Bennett v. Hardy (Cal.), 291 P. 903.
In a case similar to the case at bar decided by the Supreme Court of Rhode Island, the cars were going in opposite directions and another car came out unexpectedly from behind one of the cars, causing plaintiff to pull off the highway into a ditch and to run into a pole. The defendant claimed that the plaintiff should have stopped instead of running into a pole. The court held that the question was for the jury.
Of course, in every case of negligence, the circumstances under which an actor is placed, what an ordinarily prudent man would do or fail to do under such circumstances must always be considered in connection with negligence.
Where two approach an intersection and one signals to the other that he will pass in front, the one giving the signal is justified in assuming that the other will yield.
41 L.R.A. (N.S.), 349; Koester v. Decker, 49 N.Y. Supp. 276.
Where a party suddenly came out of a side road, the court held that the collision was his fault.
Martens v. Penton (La.), 130 So. 354.
The Alabama court held that while ordinarily the person first at the crossing has the right of way, nevertheless, there are a great many facts to be considered which are for the jury.
A person must enter an intersection carefully and cautiously and not mislead others as to his intentions.
42 C.J. 959, Sec. 688; Madison v. Berry (La.), 145 So. 694; Lee v. Donnelly (Vt.), 113 A. 542; Zuccone v. Main Fish Company, 117 P. 314; Grand Trunk Railway Company v. Ives, 36 L.Ed. 485; McCartney v. Westbrook, 286 P. 525; Hammond v. Emery (Mo.), 240 S.W. 170; Clark v. Wilson (Wash.), 183 P. 103; Koester v. Decker (N.Y.), 49 N.Y. Supp. 276.
Assume that Mr. Hand was guilty of some negligence. Even so, the truck driver was guilty of greater negligence and Mr. Hand under the decisions of our court would be entitled to recover even though his negligence exceeded the negligence of the defendant.
December 1938 issue of the Mississippi Law Journal, Vol. XI, numbered 2, page 221, et seq.
The operation of a motor vehicle at less than a fixed maximum rate of speed may be negligence under proper circumstances.
Counsel say that it was necessary that the danger to Mr. Hand be real and that if the coca cola truck merely created an apparent danger, then the defendants would not be liable. We shall not prolong this brief by a discussion of the authorities, but submit that the following authorities show conclusively that appellants are in error.
Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Hainlin v. Budge (Fla.), 47 So. 825; Iron Railway Company v. Mowery, 38 Am. Rep. 597; St. Louis Iron Mountain Railway v. Touhey, 77 Am. St. Rep. 109; Silver Cord Combination Company v. McDonald, 23 P. 346; Gannon v. New York-New Haven Railroad (Mass.), 43 L.R.A. 833; Mitchell v. Southern Pacific, 11 L.R.A. 130; Tuttle v. Atlantic City Railroad (N.J.), 54 L.R.A. 582; Root v. Kansas City Railroad, 6 L.R.A. (N.S.), 212.
Argued orally by W.H. Lott, for appellant, and Alfred Stoner, for appellee.
A judgment was rendered on the verdict of a jury in the Circuit Court of Leflore county for the sum of $20,000, in favor of the appellee, W.D. Hand, as damages on account of personal injuries sustained by him when he applied the brakes to his automobile, and turned it over in an attempt to avoid an anticipated collision with a truck belong to the appellant Coca Cola Bottling Works of Greenwood, which truck was being driven by the appellant Herman Catiom, a servant and employee of the said Bottling Works.
The declaration charged, in substance, that while the plaintiff, who resided at Greenwood, Mississippi, was driving his automobile, during the early afternoon of April 2, 1938, in a northwesterly direction on the paved concrete highway 49-E, about 3 miles from the corporate limits of said city, the truck in question approached from the Shell Mound gravel road, traveling in a southerly direction toward the juncture, or point of convergence thereof with the said paved highway; that at a time when the automobile was about 35 yards southeastward on the said paved highway, the truck came up a steep incline at a reckless rate of speed, and drove up on said paved highway 49-E, so as to occupy the half of the highway which was nearest the said Shell Mound gravel road, thereby causing the plaintiff to swerve his automobile to the left, so that the two wheels on the left side were forced off the concrete pavement on to the gravel shoulder thereof; that while he was attempting, with due care and diligence, to avoid a collision with the truck, he was thrown with great force on the pavement, and the automobile was overturned; and that the injury and damage complained of were the proximate result of the negligence of the truck driver in thus approaching and driving on to the paved highway, as aforesaid.
If it is true, as the declaration alleged, that the truck came up on, and half way across, the concrete highway 49-E from the Shell Mound graveled road at a time when the automobile was approaching the intersection at a distance of about 35 yards, then it is also true that the truck should have been given sufficient time to proceed across the intersection, or at least for such distance as would have cleared the righthand portion thereof, before the automobile entered the same. See 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.
On the other hand, if the plaintiff is not held to the proof of the case thus specifically set forth in the declaration, and we are to look to all of the facts which are disclosed by the testimony as undisputed, in determining whether the peremptory instruction requested by the defendants in the court below should have been given, we find that the intersection entered by the truck could have been seen by one traveling in a northwesterly direction on paved highway 49-E for a distance of approximately 500 feet; that the plaintiff, Mr. Hand, was driving the car, and on the front seat with him was a negro named Flournoy, employed by him, who, testifying as a witness for the plaintiff, said that he saw the truck approaching the intersection when it was at a distance of 35 or 40 feet away, on the Shell Mound gravel road, at a time when the car driven by the plaintiff was leaving the point where paved highway 49-E diverges from paved highway 82, and which point was shown by actual measurement, and without dispute, to be 500 feet from the intersection at which the accident occurred; that thereupon the plaintiff blew his horn, but kept on driving at the same rate of speed until he came near the intersection which the truck was approaching; that he then applied his brakes, and the car began skidding, the point at which it finally turned over and stopped being at least 200 feet, according to the witnesses for the plaintiff, from the point at which it began skidding, as shown by burnt rubber skid marks of the left tires on the concrete; but which distance, according to actual measurements made by witnesses for the defendants, was 279 feet from the beginning of the skid marks as they appeared on the concrete and it was 254 1/2 feet to where the car turned over and stopped from the point where the witnesses for the plaintiff stated that they first heard the screeching of the brakes of the car, upon their attention being first attracted by the noise, and as they looked toward the scene; that the plaintiff was driving a three-weeks-old Chevrolet sedan, equipped with new tires, and that the two tires on the left side blew out, either while the car was on the gravel, after having skidded off the concrete, or just as it came back on to the concrete, before turning over.
The proof further shows that the car turned over 96 feet beyond the intersection, after crossing it in front of the truck; that according to the testimony of the plaintiff himself, the front wheels of the truck were coming on to the concrete pavement of highway 49-E, which was 20 feet wide, when he passed in front of the truck, whereas some of his witnesses testified that when they first heard the noise of the screeching brakes of the car at a point shown without dispute to have been not less than 119 feet from the intersection, they looked and saw the truck out on the concrete pavement, as far as the black line in the center thereof.
The proof further discloses that as the truck approached the intersection from the Shell Mound gravel road it had to cross a culvert which was located 106 feet from paved highway 49-E; that it was necessary for the truck either to slow down or stop and change gear in passing over this culvert; that when it reached a point 75 feet from the intersection of the gravel road with the said paved highway there was a gradual incline of 5 feet to be ascended before reaching the pavement; and that those conditions, together with the fact that the truck came to a complete stop when it reached the center of the concrete pavement, according to the witnesses for the plaintiff, or at a point within 4 to 6 feet of the concrete pavement, according to the witnesses for defendants, thoroughly disprove any contention that the truck was driving at a greater rate of speed than was reasonable and proper, when it approached the intersection in question, or that the driver thereof in any manner violated the provisions of the statute, section 5571, Code 1930, here invoked by the appellee.
It was also shown that the truck was to stop at Shaffer's store and filling station just across the paved highway; and that since this store was located within the triangle between paved highways 82 and 49-E, and enjoyed trade from four or five plantations, the locality was what might be termed a public place, where many persons congregated, especially on a Saturday afternoon.
There was no stop sign where the Shell Mound gravel road intersected this paved highway 49-E, and there was no statute in force at that time declaring the paved highway to be a right of way thoroughfare in relation to the said gravel road. The Shell Mound gravel road was formerly the main highway between Greenwood and Clarksdale, and was still a much-used thoroughfare at the time of the accident, and the plaintiff was shown to have been familiar with the conditions at the scene of accident.
Moreover, even though the plaintiff had been traveling upon a right of way thoroughfare, he would not have been entitled to cross the intersection ahead of the truck, under the facts of the present case, unless he had approached it at approximately the same time, as announced in the cases hereinbefore cited. In the case of Myers v. Tims, supra, it was held that when a motorist is traveling on a street which has been declared by city ordinance to have the right of way, and he arrives at the point of its intersection with the less favored street, then the vehicle on the right of way street has the privilege to proceed, provided it arrives at such intersection at approximately the same time that a vehicle on the cross street arrives; and that this is the extent of the rule. That "the supposed right of those on the favored street to proceed at full speed so long as they have come within sight of the crossing, . . . is no valid right, and the assertion and exercise thereof is simply a violation of law, . . ." [ 161 Miss. 872, 138 So. 579.] The principle there announced was reaffirmed in the two later cases hereinbefore mentioned, and it applies with even greater force in the case at bar, since it was not shown that highway 49-E occupied the legal status at that time of having the right of way by virtue of any statute or other authority.
These paved highways were built for all of the people, and if a motorist while traveling on one of our paved highways should be relieved of all duty to motorists entering the intersection of our graveled home-to-market roads with the same, merely because the motorist on the pavement may come within sight of the intersection before the motorist on the graveled road does, there would be places almost innumerable throughout the state where travel would be practically blocked or eliminated from the graveled roads into the paved highways much of the time, for the reason that it would frequently occur that one automobile after another would continually come in sight on the paved highway approaching such intersections.
On the rate of speed, one of the witnesses for the plaintiff testified that he was driving about 65 or 70 miles an hour. The plaintiff himself testified that he did not know how fast he was driving, but that he ordinarily drove about 45 or 50 miles an hour, and that he was not driving at a greater rate of speed than was his custom. It was shown, however, by actual measurements made by the state highway patrol of the skid marks which were made by only two tires on the concrete, that when the brakes were applied the car skidded 63 feet to the left before going on to the graveled shoulder of the concrete highway; and as heretofore stated, the car traveled a distance of not less than 200 feet, by the estimation of plaintiff's witnesses, and not more than 279 feet by measurements taken by the defendant's witnesses, before it turned over and stopped; and it did not stop at all until two of the tires blew out and caused the car to turn over on the pavement. In this connection, there was introduced in evidence by the defendants, without objection, the "Automobile Users' Guide," published by an Automobile manufacturer, showing the distances within which a car stops when it is being operated on a concrete highway during dry weather (such as prevailed on the day of this accident), and when the brakes are in good condition. The witness furnishing this proof was an automobile salesman of about twenty years' experience, who testified that the data furnished in the "Automobile Users' Guide" was generally accepted by automobile dealers as authentic, the information being gained and verified through actual tests. It is declared therein that when a car is traveling 50 miles an hour on a concrete pavement, it will run about 56 feet after the motorist decides to release the accelerator and apply the brakes, before the application of the brakes actually becomes effective; and that the car will then run only 109 feet further before it stops; that at 60 miles per hour it will run only 156 feet further after the brakes are actually applied. This has reference, of course, to a normal application of the brakes for the purpose of stopping a car without turning it over. Therefore, it should be stopped within a shorter distance at these rates of speed, where the brakes are applied in such manner that the noise of their screeching was heard on the inside of Shaffer's store, approximately 200 feet from the point on the highway where they were first applied, and where the car ran with two wheels on the gravel shoulder and two on the concrete of the highway for a portion of the distance covered in the instant case.
Whether this data, gathered by the manufacturer, be fairly accurate or not, it should at least have sufficient probative value, under all of the facts and circumstances of this case, to show that when a car has traveled from 200 to 279 feet, partly on concrete and partly on gravel, after the brakes were applied, in such fashion as to burn and blow out two of the tires, and the car did not then stop until it overturned, the conclusion necessarily follows that it was being driven at such a rapid rate of speed that the application of the brakes, in the manner in which they were applied, would have caused the wreck, even though the truck had come to a complete stop at the point where the plaintiff says that he first saw it, 40 or 50 feet from the intersection, and where he then applied his brakes. In other words, the truck was where it had a right to be at the time the brakes of the car were applied, and nothing that the truck did or failed to do thereafter had anything to do with the accident, the plaintiff having testified that he passed in front of the truck when its front wheels were coming on to the pavement.
The case was submitted to the jury under erroneous instructions to the effect that the defendants would be liable if it appeared to the plaintiff that the truck would reach the intersection before he did; and they ignored the right of the jury to believe that he may have seen the truck approximately 500 feet away, before he reached the intersection, and from where his witness, who was seated in the car with him, said that he first saw it. The instructions were based on the assumption, however, that the jury might believe that the truck was running at a reckless rate of speed; but there was no substantial evidence to support that assumption, and it was clearly refuted by the physical facts disclosed by the evidence. We deem it unnecessary, however, in view of the conclusion we have reached, to discuss these instructions, or any other errors assigned, except the request for the peremptory instruction on behalf of the defendants. There is no conflict whatever in the evidence to the effect that the truck was at all times nearer the intersection than was the automobile, from the time that the automobile first came in sight of the truck, 500 feet away.
In view of the importance of the case to the respective litigants, and the voluminous record before us, we have set forth the facts in greater detail than perhaps would be necessary, as a basis for the decision. And in order to avoid prolonging the opinion further, we will refrain from discussing the numerous cases cited in the briefs, except to say that in our opinion they are not controlling here; and for the further reason that after a careful consideration of all the undisputed evidence, and resolving any conflict in the remaining evidence in favor of the appellee, the conclusion is inescapable that the failure of the appellee to have his car under proper control as he approached the intersection was, in our opinion, the sole proximate cause of this unfortunate accident; and the court below erred in not granting the peremptory instruction requested on behalf of the appellants.
Reversed and judgment here for the appellants.