In Jones v. Carter, 192 Miss. 603, 7 So.2d 519 (1942), and again in Junakin v. Kuykendall, 237 Miss. 255, 114 So.2d 661 (1959), we said that the unqualified language of § 8198; "shall yield the right-of-way to all vehicles approaching on said highway," was limited by the language of § 8197.Summary of this case from Caves v. Smith
April 13, 1942. Suggestion of Error Overruled May 11, 1942.
In wife's action for injuries sustained when automobile driven by husband on through highway, partly on and partly off pavement, collided with defendant's automobile which had crossed highway to such extent that front wheels had entered onto graveled road, verdict for wife was contrary to the weight of the evidence (Laws 1938, ch. 200, secs. 70(a), 72 (a), 73).
The statutes regarding right-of-way at intersection with through highway have no application where driver of vehicle comes to entrance to through highway and has entered the intersection before it has been entered by a vehicle from the through highway or has entered thereon before a vehicle on the through highway has approached so closely as to constitute an immediate hazard (Laws 1938, ch. 200, sec. 70(a), 72(a), 73).
The statutes regarding right-of-way at intersections with through highway does not require the driver of a vehicle about to enter or cross a through highway from a private road or driveway, or who has already entered into intersection with through highway, to yield the right-of-way to an approaching vehicle which has neither entered the intersection nor approached so closely thereto from the through highway as to constitute an immediate hazard (Laws 1938, ch. 200, secs. 70(a), 72(a), 73).
The statute requiring driver of vehicle about to enter or cross through highway from private road or driveway to yield right-of-way, is to be construed in connection with statute governing rights and obligations of drivers of vehicles when reaching the entrance to a through highway (Laws 1938, ch. 200, secs. 70(a), 72 (a), 73).
5. APPEAL AND ERROR. Damages.
In personal injury action against motorist, permitting examination of a motorist regarding his financial condition and his transfers of property to daughter and son, although there was no basis for suspicion that motorist would be liable for punitive damages, was error which was so highly prejudicial that Supreme Court would notice the error, notwithstanding it had not been distinctly assigned, in connection with argument that verdict was excessive and contrary to overwhelming weight of evidence (Supreme Court rule 6).
In a personal injury action, proof of the financial worth of a defendant is inadmissible except where punitive damages are recoverable.
APPEAL from circuit court of Rankin county, HON. PERCY M. LEE, Judge.
Roy N. Lee and Joe Sid Mize, both of Forest, for appellant.
The physical facts and credible evidence harmoniously show that Marvin Carter's negligence was the proximate cause of appellee's injuries, and they refute all contentions of negligence on the part of appellant. The undisputed evidence, both for the appellant and appellee, shows that appellant's automobile had crossed the south lane of new U.S. Highway 80; that the front wheels of his automobile had crossed the north lane of the new highway; that they had crossed the paved turnout or ledge joining the north lane of the highway and were in the gravel of old U.S. Highway 80; and that the back wheels of his automobile were about half way between the north edge of the pavement and the center line of the new highway. Appellant had the right-of-way.
Laws of 1938, Ch. 200, Secs. 70(a), 72(a).
The undisputed evidence for appellee shows that Marvin Carter, driver of the automobile in which appellee was riding, was driving at a speed of 50 miles per hour; he admits he was driving 45 miles per hour. Carter was proximately negligent in driving his automobile at the aforesaid rate of speed.
Laws of 1938, Ch. 200, Sec. 51(a) (c).
When a vehicle traveling on a right-of-way street arrives at the intersection of a cross street at approximately the same time that a vehicle on the cross street arrives at the point of intersection, then the vehicle on the right-of-way street has the privilege to proceed, and this is the extent of the rule. But 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, or of those there attempting to cross, is no valid right, and the assertion and exercise thereof is simply a violation of law, and the general practice in so violating the law makes it none the less than it is — a violation of the law.
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; Coca-Cola Bottling Works of Greenville et al. v. Hand, 186 Miss. 893, 191 So. 674; Avent v. Tucker, 188 Miss. 207, 194 So. 596; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Terry et al. v. Smylie, 161 Miss. 31, 133 So. 662; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840.
Troy W. Mashburn, S.L. McLaurin, and J.C. Murray, all of Brandon, for appellee.
A driver must at all times operate his automobile at a rate of speed that is reasonable and proper under the conditions with which he is confronted, having due regard always to the traffic and use of the street.
Counsel for appellant seems not to distinguish between the rights and duties of drivers at cross street intersections and those of a mere entrance, as is the case here where old Highway 80 entered new 80, and of the duty of a driver approaching from a private driveway. Here, appellant could not have been deemed to have entered the intersection until he crossed the center line of U.S. Highway 80, and at this time the Carter car was only about 43 feet away.
The law, Sec. 73, Ch. 200, Laws of 1938, required appellant, when entering U.S. Highway 80, a through highway, from a private road or driveway, to look for cars approaching and to yield the right-of-way to all vehicles approaching on the highway. Note the difference between Sec. 73 and Sec. 70(a) and 70(b) of Ch. 200, Laws of 1938. Sections 70(a) and 70(b) deal with vehicles approaching or entering an intersection from different highways. Here, appellant entered from a private driveway and was under a much greater obligation to those traveling the highway than if he had been entering from another highway.
Appellant bases his argument on the proposition that the Carter car was not in sight when he entered the highway, but this does not even comport with the reasonable testimony of appellant himself and is in direct conflict with the testimony of the witness.
Appellant cites the cases of Coca-Cola Bottling Works of Greenwood et al. v. Hand, 186 Miss. 893, 191 So. 674; Myers v. Tims, 161 Miss. 872, 138 So. 578; Gough v. Harrington et ux., 163 Miss. 393, 141 So. 280; and Whatley v. Boolas, 180 Miss. 372, 177 So. 1, as authority for the proposition that a directed verdict should have been given. Appellant's argument on this proposition is based on the theory that Carter did not have his car under control and that appellant reached an intersection first and was entitled to the right-of-way.
In the case of Avent et al. v. Tucker et al., 188 Miss. 207, 194 So. 596, this court had under consideration a case involving an automobile accident. The cases cited by appellant were urged upon the court in the Avent v. Tucker case, supra, as authority for the proposition that a peremptory instruction should have been granted, and this court below took up these cases and differentiated between them and the Avent v. Tucker case.
It will be noted that in the Tucker case the deceased, Tucker, was guilty of negligence, that he did not have his car under control, but the court said there that the jury could well have found that the concurrent negligence of both drivers contributed to and proximately caused the injury, and, while we emphatically deny that Carter was guilty of any negligence, yet if he was appellant was also guilty of negligence, and the same rule would apply.
The judgment here appealed from is one for damages sustained on account of personal injuries received by the plaintiff, Mrs. Carrie Carter, while riding in an automobile driven by her husband on U.S. Highway 80, traveling west, about two miles east of Pelahatchie, Mississippi, late in the afternoon, when he drove the same against the side of an automobile driven by the defendant, O.G. Jones, at a time when the defendant's automobile was leaving a so-called intersection extending from the front of Abernathy's Store on the south side of the said paved highway to the north side thereof, from whence a graveled road, connecting with the pavement, runs in a northeasterly direction.
The proof discloses without dispute that at the time of the accident, the defendant's automobile had crossed the 20 foot paved portion of the highway to such an extent that the front wheels thereof had entered onto the graveled road, extending from the north side of the pavement as aforesaid, and that the rear wheels were at least half way between the center stripe of the paved highway and the north edge thereof, after the said automobile had left from a standstill position in front of Abernathy's Store, which was situated approximately 44 feet from the south side of the pavement, and had crossed to the north side of the highway for the purpose of going onto the said graveled road; that the approaching automobile in which the plaintiff was riding on the said U.S. Highway 80, traveling west as aforesaid, came into view for the first time from around a curve and over a small hill 468 feet east of the scene of the accident; that the driver of this car could and did see the defendant's car at all times while approaching it from that distance; that he did not undertake to check his speed until he got within 43 feet of the defendant's car, then skidded from that point all the way until the collision occurred, driving with his right wheels off the pavement nearly 18 inches to the north side thereof. Therefore, aside from the fact that the testimony of all of the witnesses in the case discloses that the defendant's car was clearing the intersection at the time it was struck, the relative position of the two cars at the time of the impact was conclusively established by the fact that the car in which the plaintiff was riding was partly on and partly off the pavement north of the center stripe of the highway when it crashed into the side of the other car.
It would appear from the testimony of the highway patrolman, who was introduced as a witness for the plaintiff, that the defendant's car had necessarily entered onto the intersection to cross the same when the other car first came in sight 468 feet away; that otherwise, it could not have reached the point where it was struck by this approaching car within the time that the latter ran the distance from where it first came in sight down to the place of the accident, at the rate of speed at which it was admittedly traveling. But, without going into detail as to all of the testimony or making mention of the reasonable inferences to be deduced from certain facts which were established to a mathematical certainty by the proof offered on behalf of the plaintiff, it is sufficient to say that the case presented is extremely close on the question as to whether the defendant was entitled to a peremptory instruction in his behalf. At any rate, we are of the opinion that the case should be reversed and remanded on account of the verdict being contrary to the overwhelming weight of the evidence.
Sections 70(a), 72(a) and 73 of Chapter 200, Laws of 1938, requiring the driver of a vehicle to stop at the entrance to a through highway and yield the right-of-way to other vehicles which have entered the intersection from said highway or which are approaching so closely from said through highway as to constitute an immediate hazard have no application to a case where the driver of a vehicle comes to the entrance to a through highway and has entered into the intersection before it has been entered by a vehicle from said through highway or has entered thereon before a vehicle on the through highway has approached so closely as to constitute an immediate hazard. On the contrary, the question of liability is controlled in such case by the principles announced in the cases of: 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; and Coca-Cola Bottling Works of Greenwood et al. v. Hand, 186 Miss. 893, 191 So. 674. In other words, the statute of 1938, supra, does not require the driver of a vehicle who has already entered onto an intersection with a through highway to yield the right-of-way to an approaching vehicle which has neither entered the intersection nor approached so closely thereto from said through highway as to constitute an immediate hazard. This is likewise true as to a vehicle about to enter or cross a through highway from a private road or driveway. That is to say, Section 73 of Chapter 200, Laws of 1938, supra, is to be construed in connection with Section 72(a) thereof governing the rights and obligations of drivers of vehicles when reaching the entrance to a through highway.
It should also be noted that over the objection of the defendant, he was asked as to how much money he had, where it was being kept and about a transfer to his daughter of a portion of a deposit of money in a bank, and was also questioned about the conveyance of some real estate to his son, all before any testimony had been introduced as to the facts and circumstances in connection with the accident. Proof of the financial worth of the defendant in such cases is wholly inadmissible except where punitive damages are recoverable. There is no basis for even a suspicion that the defendant would be liable for punitive damages in the case at bar, nor was this a suit for discovery or to set aside alleged fraudulent conveyances. Obviously such testimony was highly prejudicial to the defendant, and while not distinctly assigned as error on this appeal, the court may, under Rule 6 of the Rules of the Court, "at its option, notice a plain error not assigned or distinctly specified." We exercise the option to notice the error here in connection with the argument that the verdict is excessive and contrary to the overwhelming weight of the evidence.
Reversed and remanded.