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Public Service Corp. v. Watts

Supreme Court of Mississippi, Division B
Nov 13, 1933
168 Miss. 235 (Miss. 1933)


In Public Service Corp., et al v. Watts, 168 Miss. 235, 150 So. 192, where the corporation had not kept filled an excavation which it had dug in the street, this omission was held to be a contributing proximate cause of the injury to Watts, on a motorcycle traveling south, when he was struck by the automobile of Smith, going north, as he cut to the left to dodge the excavation, lost control of his machine, and collided with the motorcycle.

Summary of this case from Matthews v. Thompson


No. 30695.

October 16, 1933. Suggestion of Error Overruled November 13, 1933.


After verdict for plaintiff, his testimony must be accepted as true by reviewing court, unless overwhelmingly contradicted.

2. AUTOMOBILES. Automobilist's action in going to left of street to avoid trench was not proximate cause of injury to motorcyclist with whom he collided after automobile got out of control.

The injured motorcyclist recovered judgment against city and gas corporation which dug trench, and defendants claimed they were entitled to peremptory instruction on theory of intervening, independent, and efficient cause, which was action of driver of automobile.

3. AUTOMOBILES. Automobilist may drive to left around obstruction in street and be on left side temporarily, if he exercises proper care toward others using street.

Under this rule, the automobilist does not have to wait before turning to left merely because he sees another vehicle approaching in distance if he had time to make turn and get back within his own side before the arrival of the other vehicle within the particular space to be occupied in taking the turn.


Negligence putting injurious force in operation is proximate cause if such force is still in progress and has not lost its identity and continuity when injury occurs.


New independent force intervening between defendant's negligence and injury becomes proximate cause if of sufficient strength to overcome and substantially supersede original force or motion.


Negligent condition of trench in street held proximate cause of motorcyclist's injury caused when automobilist attempted to go around trench, lost control of car, and collided with motorcycle.


Whether injury to motorcyclist in collision could reasonably have been foreseen and was natural and probable result of trench in street held for jury.


As regards proximate cause, it is not necessary that wrongdoer should have foreseen particular injury; it being sufficient that consequence of negligence was natural and probable result thereof.


Instructions should be read as whole.


Grounds for interference with claimed excessive verdict must be most clearly apparent and made particularly strong, where plaintiff subjected himself to personal inspection or examination of injuries before jury, and defendants did not undertake to dispute injuries or effects thereof.

APPEAL from Circuit Court of Forrest County.

Luther A. Smith, of Hattiesburg, for appellant Public Service Commission.

The most apparent and obvious fact in this entire record is that the collision between the automobile and the motorcycle was the immediate direct proximate cause of the plaintiff's injuries.

Although a defendant may be negligent in the performance or omission of some duty owed to the person injured, no liability attaches unless such negligence was the proximate, rather than the remote, cause of the injury.

45 Corpus Juris, p. 901; Clisby v. Mobile, etc., R. Co., 78 Miss. 937, 29 So. 913; Meyer v. King, 72 Miss. 1, 16 So. 245, 35 L.R.A. 474; Crawley v. Richmond, etc., R. Co., 70 Miss. 340, 13 So. 74; 2 Elliot on Railroad (3 Ed.), sec. 842, p. 227; 22 R.C.L., pages 113, 114, par. 3.

As a rule, everyone is liable for his own wrong, and not for that of another. A wrongdoer is responsible for the consequences produced by his own act, but not for what others, acting independently of him and for themselves, may do, even though his act may be the occasion of their doing what they do.

Marqueze v. Sontheimer, 59 Miss. 430; L. N.R. Co. v. Daniels, 135 Miss. 33, 99 So. 434; Bufkin v. L. N.R. Co., 137 So. 517; Harton v. Forest City Telephone Co. (N.C.), 14 L.R.A. (N.S.) 956.

An intervening cause will be regarded as the proximate cause, and the first cause as too remote where the chain of events is so broken that they become independent and the result cannot be said to be the natural and probable consequence of the primary cause, or one which ought to have been anticipated. The law will not look back from the injurious consequences beyond the last efficient cause, especially where an intelligent and responsible human being has intervened.

45 C.J. 928; Anderson v. B. D.R. Co., 81 S.E. 579, 51 L.R.A. (N.S.) 888; Milwaukee St. P.R. Co. v. Kellogg, 94 U.S. 469, 475, 24 L.Ed. 256, 259; Teis v. Smuggler Mining Co., 158 Fed. 260, 15 L.R.A. (N.S.) 893; Louisiana Mut. Ins. Co. v. Tweed, 7 Wall, 44, 19 L.Ed. 65; Aetna F. Ins. Co. v. Boon, 95 U.S. 117, 130, 24 L.Ed. 395, 398; Cole v. German Sav. Co., 104 Fed. 13, 63 L.R.A. 416; Seith v. Commonwealth Electric Company (Ill.), 89 N.E. 425, 24 L.R.A. (N.S.) 978; Alexander v. New Castle, 115 Ind. 51, 17 N.E. 200; Leeds v. N.Y. Tel. Co., 178 N.Y. 118, 70 N.E. 219; Paulton v. Keith, 23 R.I. 164, 49 A. 635, 91 Am. St. Rep. 624; Jones v. City of Fort Dodge (Ia.), 71 N.W. 16; Storey v. New York City, 29 App. Div. 316, 51 N.Y.S. 580; Smith v. Ala. Water Light Co., 142 So. 893; Stanley v. Union Depot R. Co., 21 S.W. 832.

Liability of townships for defects in highway, 13 L.R.A. (N.S.) 1219; De Camp v. Sioux City (Ia.), 37 N.W. 971; Lyons v. Watt (Colo.), 95 P. 949, 18 L.R.A. (N.S.) 1135; Bartram v. Saron (Conn.), 71 Am. St. R. 225; Mahogany v. Ward (R.I.), Am. St. R. 753; Kidder v. Dunstable, 7 Gray 104; Briggs v. Pine River Twp., 150 Mich. 381, 114 N.W. 221; Atchison, T. S.F. Ry. Co. v. Calhoun, 213 U.S. 1; Wharton on the Law of Negligence, sec. 184; Sherman and Redfield on the Law of Negligence (5 Ed.), sec. 26; Louisiana Mut. Insurance Company v. Tweed, 7 Wall. 44, 52, 19 L.Ed. 65; Steenbock v. Omaha Country Club, 110 Nebr. 794, 195 N.W. 117; Hagerstown v. Foltz (Md.), 104 A. 263; Petty v. Cimarron (Kan.), 225 P. 1033; Lambel v. City of Florence, 222 P. 64; Albany v. Brown (Ga.), 88 S.E. 215; Insurance Co. v. Transportation Co., 12 Wall. 194, 20 L.Ed. 278; Freeman v. Merchants Ass'n, 156 Mass. 353, 30 N.E. 1013, 17 L.R.A. 753; Houston, etc. v. Maxwell (Tex.), 128 S.W. 163; Thurbron v. Dravo, 238 Pa. 443, 86 A. 292, 44 L.R.A. (N.S.) 699; Alabama Power Co. v. Bass (Ala.), 119 So. 625; Sitter's Adm'r v. City of Maysville, 69 S.W. 1074; Furlong v. Roberts, 164 App. Div. 458, 150 N.Y.S. 166.

It has been reasoned that the defense that an injury alleged to have been caused by the defendant's negligence was in fact caused by the interposition of an independent act of another, cannot be interposed when that other acted neither maliciously nor negligently. But this is plainly an aberration. It is not at all necessary for the defendant, in the case where he is sued for an injury caused by the act of a third person, to give the plaintiff a tenable action against such third person. If the third person acted independently, of the defendant and if the action of the defendant did not induce his action, then it can make no difference with the rights of the defendant whether the action of the third person was wrongful or meritorious.

1 Thompson on Negligence, sec. 54; Cavanaugh v. Centerville Block Coal Co. (Ia.), 109 N.W. 303; 7 L.R.A. (N.S.) 907; Frazier v. Hull, 127 So. 775; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; 1 Blashfield's Cyc. of Automobile Law, 438, sec. 10.

The alleged defective condition of the street, was, at worst, a mere condition and not a cause.

Pages 445, 6, 7 of 38 Cyc.; 44 C.J. 910-11; Sec. 491, 45 C.J. 931; Lyons v. Watt (Colo.), 18 L.R.A. (N.S.) 1135; Bruggeman v. City of York (Pa.), 102 A. 415; Parmenter v. City of Marion (Ia.), 85 N.W. 90; 45 C.J. 10-11; 45 C.J., p. 925; Eberhardt v. Glasgow Mut. Tel. Assn., 91 Kan. 763, 139 P. 416; Hartman v. Atchison, etc., R. Co., 94 Kan. 184, 146 P. 335, L.R.A. 1915D, 563; Seith v. Commonwealth Electric Com., 89 N.E. 425, 24 L.R.A. (N.S.) 978; Foster v. City of Union (S.C.), 123 S.E. 839; Orton v. Pennsylvania R. Co., 7 F.2d 36; Steenbock v. Omaha Country Club (Nebr.), 195 N.W. 117; Munsen v. Illinois No. Utilities Co., 258 Ill. App. 438; Haarstrick v. Oregon Short Line R. Co. (Utah), 262 P. 100; Schmidt v. Chicago, etc., R. Co., 191 Wis. 184, 210 N.W. 370; Smith v. Mead Construction Co. (Kan.), 282 P. 708; Ganpin v. Murphy (Pa.), 145 A. 123; Houston, etc. v. Maxwell (Tex.), 128 S.W. 163; Marbel v. City of Worchester (Mass.), 4 Gray 399.

This accident was not the natural and probable consequence of defendant's alleged negligence and was unforeseeable.

Meyer v. King, 16 So. 245; Rooks v. A. V.R. Co., 78 Miss. 91; Lee County Gin Co. v. Middlebrooks, 137 So. 108; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9; Dix v. Brown, 41 Miss. 131; Merchants Wharfboat v. Wood, 64 Miss. 661, 2 So. 76; Y. M.V.R. Co. v. Millsaps, 76 Miss. 855, 25 So. 672, 71 Am. St. Rep. 543; L. N.R. Co. v. Blair, 123 So. 859; Leek Milling Co. v. Langford, 81 Miss. 728; Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Peetri v. L. N.R. Co., 119 So. 164; I.C.R. Co. v. Wooley, 28 So. 26; 16 Am. Eng. Enc. Law, 436; 45 C.J., p. 911; Stone v. Boston, etc., R. Co., 171 Mass. 536, 41 L.R.A. 794; South Side Pass. R. Co. v. Trich, 117 Pa. 390, 2 Am. St. Rep. 627, 11 A. 627.

Under the law one is not required to anticipate carelessness of others.

Teis v. Smuggler, 158 Fed. 260, 15 L.R.A. (N.S.) 893; Lemos v. Madden, 28 Wyo. 1, 10, 200 P. 691; Scheffer v. Washington, 105 U.S. 249, 26 L.Ed. 1070; Kreigh v. Westinghouse, etc. Co., 152 Fed. 120, 11 L.R.A. (N.S.) 684; Andrews v. Chicago, etc. (Ia.), 105 N.W. 404; American Bridge Co. v. Seeds, 144 Fed. 605; Harton v. Forest City Tel. Co., 14 L.R.A. (N.S.) 956, 14 Am. Eng. Ann. Cases 390; Lusitania, 251 Fed. Rep. 732; Republic of France v. French Overseas Co., 277 U.S. 334; Burt v. Advertiser Newspaper Co., 154 Mass. 238, 13 L.R.A. 97; Illinois Cent. R. Co. v. Bloodworth, 145 So. 332; McComb City v. Haymen, 124 Miss. 525, 87 So. 12.

The plaintiff must aver and prove foreseeability.

Meyer v. King, 16 So. 245; Poland v. Earhart, 70 Iowa, 285, 30 N.W. 637; Carter v. Towne, 98 Mass. 567; Pietri v. L. N., 119 So. 164; Cole v. German Savings, etc., Society, 124 Fed. 113, 59 C.C.A. 593, 63 L.R.A. 416. Stevens Heidelberg, of Hattiesburg, for appellant, City of Hattiesburg.

Municipal corporations are not liable for every accident that may happen in their streets. They are not insurers of the safety of those who use them. Their duty is discharged when they have made them reasonably safe for people of ordinary prudence.

Nesbit v. City of Greenville, 69 Miss. 22, 10 So. 452, 30 Am. St. Rep. 521; Pomes v. McComb City, 121 Miss. 425, 83 So. 636; City of Meridian v. Crook, 109 Miss. 700.

While the street must be used for public purposes, it is not necessary for the entire space to be kept in condition for travel.

Gulfport Miss. Coast Traction Co. et al. v. Manuel et al., 123 Miss. 266, 85 So. 308; McComb City v. Hayman et al., 124 Miss. 525, 87 So. 11; City of Natchez v. Granfield, 124 So. 656; Macedon v. City of Corinth, 155 Miss. 588, 124 So. 795; Ill. Cent. Railroad Co. v. Bloodworth et al., 145 So. 332.

Currie Currie, of Hattiesburg, for appellee.

By filing the plea of the general issue only, the appellants admitted, for the purpose of the trial, that the declaration stated a good joint cause of action against them, and that if the appellee proved what he had undertaken to prove he would be entitled to a verdict against both of them.

21 R.C.L., p. 120, p. 562; Brewer v. Strong's Executive, 10 Ala. 961, 44 Am. Dec. 514.

If Smith and the appellee had, either or both, been guilty of negligence which only proximately contributed to the collision and injury, it would not bar the appellee of the right of recovery, and would not entitle the appellants to a peremptory instruction.

Sec. 511, Miss. Code 1930; Sec. 512, Miss. Code 1930.

The existence of causal connection between the negligence of the appellants and the collision and injury of the appellee asserts itself in the very statement of the case. The proximate cause of the collision and injury originated right in and came right out of this dangerous ditch across Smith's side of the street. But the evidence in the case proved the causal connection.

So plain is the causal connection, if you would state the case and all the circumstances to a child of ordinary precocity, it would immediately tell you that the dangerous ditch across the street was the proximate cause of the collision and injury.

Chapter 2, 4 Law Library by Putney, 2 W. Bl. 892.

Where a party by his own wrongful act has brought into operation an agency which concurred to produce the injury for which a recovery is sought, he is none the less liable because the consequences complained were not the immediate result of his act.

Watson on Damages for Personal Injuries, 65, 69.

The mere fact that there has been some intervening cause between the defendant's act or omission and the plaintiff's injuries, is not sufficient to discharge from liability the author of the original wrong.

Waton on Personal Injuries, 62, 66.

The negligent act of a third person may have intervened between the plaintiff's injuries and the defendant's wrongs, and yet the act of the latter may have so influenced and induced the injuries as to be regarded in law the proximate cause thereof. A defendant may indeed be liable for personal injuries received, though the negligence of a third party contributed to the injury, and though the act of the third party, was entirely independent of that of the defendant.

Watson on Damages for Personal Injuries, 131, 158.

The cause of injuries received by a person in an attempt to avoid a threatened danger, the position of peril being due to the wrong or negligence of another, constitutes an apt example of the doctrine of liability, of a tort-feasor, notwithstanding the fact of intervening causes, where the latter have been set in motion or naturally induced by the wrongful act.

Watson on Damages for Personal Injuries, 83, 96.

Whether the conduct or act of Smith in driving around the ditch across the street, under the circumstances confronting him, was an independent, intervening, efficient cause of the collision and injury, was a question for the jury to determine.

Lee County Gin Co. v. Middlebrooks, 161 Miss. 422, 137 So. 108; Southern Ry. Co. v. Floyd, 99 Miss. 519, 55 So. 287; Terry v. New Orleans Great Northern R. Co., 103 Miss. 679, 60 So. 729; Jarrell v. New Orleans N.E.R. Co., 109 Miss. 49, 67 So. 659.

The general rule on this subject undoubtedly is, that what is the natural or proximate cause of particular injuries, or what the probable or immediate consequences of a given act, is one of fact for the determination of the jury, dependent upon the circumstances of each case.

Watson on Damages for Personal Injuries, p. 213, p. 166.

The question of natural and proximate cause is not, ordinarily, one of science or legal knowledge, but is for the jury to answer in the light of all the attending circumstances, and in accordance with common sense and understanding.

Watson on Damages for Personal Injuries, p. 216, p. 168; Watson on Damages for Personal Injuries, p. 226, p. 177.

The general rule with regard to evidentiary value of proof of a violation of the law of the road is that the violation is not negligence per se, but that it is merely prima facie evidence of negligence, and the issue of negligence should, therefore, be generally decided by the jury and not be disposed of by the judge as a matter of law.

Sec. 99, pp. 162-167, Ency. of Auto. Law, Huddy (9 Ed.), 3-4.

Since the violation of the law of the road is not conclusive on the question of the violator's negligence, but is only prima facie evidence of his negligence, a motorist is permitted to show circumstances excusing his conduct and rebutting the presumption of negligence.

Sec. 102, pp. 170-171, Ency. of Auto. Law, Huddy (9 Ed.), 3-4.

If an obstruction exist on the right-hand side of a highway, the driver of a motor vehicle may be justified in passing to the other side and in driving along that side until he is past that obstacle. Under such circumstances he has a right to be on the left side temporarily; and, if he exercises the proper degree of care while there, he is not liable for injuries arising from a collision with another traveler, as where a turn is taken at high speed.

Section 103, pages 172-173, Ency. of Auto. Law, Huddy (9 Ed.), 3-4; Sec. 104, Ency. of Auto. Law, Huddy (9 Ed.), pages 173-174; Ency. of Auto. Law, Huddy (9 Ed.), 3-4, page 176; Sec. 109, page 176, Ency. of Auto. Law, Huddy (9 Ed.).

When the driver of a machine makes a sudden swerve to the wrong side of the street where he strikes a pedestrian, his negligence is a question for the jury.

Question for jury, page 181, Ency. of Auto. Law, Huddy (9 Ed.); Schwartz, Trial of Automobile Cases, sec. 209, page 216; Schwartz on Trial of Automobile Cases, par. 210, page 219.

The law of the road is not conclusive on the question of negligence, but is only prima facie evidence of negligence, and it is permitted to show circumstances excusing conduct and rebutting the presumption of negligence. A deviation from the rule is sometimes necessary, and where the deviation is made to avoid accident, apparently necessary to avoid same, it does not constitute negligence.

Potter v. Glassell, 146 La. 687; Condor v. Griffith, 61 Ind. App. 218; Dohm v. Cardoza Brothers, 206 N.W. 377; Parmenter v. McDougall, 172 Cal. 306; Larson v. Long, 74 Colo. 152; Stoheman v. Martin, 28 Cal.App. 338; Irwin v. Judge, 81 Conn. 492; Grier v. Young, 132 Ga. 606; McWright v. Providence Telephone Co., 131 A. 841; Harris v. Parks, 58 Utah, 42; Hamilton v. Young, 185 Iowa, 1160; Johnson v. Pridneaux, 176 Wisc. 374; Deantonia v. The New Haven Dairy Co., 105 Conn. 663; Chase v. Tingdale Bro., 127 Minn. 401; Bone v. Yellow Cab Company, 129 Wn. 503.

Under the law, and under franchise under which said dangerous excavation was made in the street, Smith, the appellee and the rest of the public were then and there entitled to a paved street in reasonably safe condition, and instead, due to the negligence of the appellants, there was, in and across said street, right in the way of public travel, this dangerous excavation and defect. There can be no independent or voluntary action by a traveler at such a place, and Smith was enforced to go around it, or run the risk of being injured or killed in undertaking to drive over it.

Scott v. Shepherd, 2 W. Bl. 892, chapter 2, 4 Law Library, Putney.

The evidence in the case shows beyond a reasonable doubt that the ditch was dangerous, and that it had been in a dangerous condition for months, so long that the law charged the city of Hattiesburg with knowledge of its dangerous condition, but it was put in the street under the license or franchise of the city and the law imputed notice to the city.

43 C.J., p. 993, par. 1780; Nesbitt v. Greenville, 69 Miss. 22, 10 So. 452; Columbia v. Woodberry, 136 U.S. 450, 10 Sup. Ct. 990, 34 L.Ed. 472.

Argued orally by Luther A. Smith and Rowland W. Heidelberg, for appellant, and by Dan Currie and Neill Currie, for appellee.

Appellant Public Service Corporation is a distributor of fuel gas, and for that purpose obtained a franchise for the construction and operation of a gas pipe line distribution system in appellant city, the city of Hattiesburg. In that franchise it was provided, among many other things, that "whenever the grantee shall cause any opening or alteration whatever to be made for any purpose, the work shall be completed within a reasonable time, and the grantee shall upon the completion of such work, restore the property disturbed to as good condition as it was before such opening or alteration, subject to the approval of the city engineer."

Bouie street in said city is paved with brick upon a concrete base, and is from eighteen to twenty-four feet wide. In order to lay its pipe lines under and across said street it was necessary at several places for the gas corporation to remove the brick and concrete for a width of about twenty inches and a depth of about two feet, and for a distance of about half way across the street. In November, 1931, such a ditch or trench was made in said street at a point between the intersections of Sixth and Seventh streets. When the pipe was placed therein, and from thence tunnelled across to the opposite side of the street, the ditch or excavation was temporarily filled with sand or gravel; the restoration of the brick and concrete being deferred to a later time. Bouie street is one of the principal streets of the city, and carries a heavy traffic. The result was that the sand and gravel temporarily placed as fillers in the trenches or ditches aforesaid would soon be whipped out, as some of the witnesses expressed it, by the constant passing of automobiles and trucks, and it was necessary to refill the trenches from time to time, and this the gas corporation made some attempts to do.

This situation was allowed to prevail for several months and until after the injury in this case on April 23, 1932. The trench causing the injury, to-wit, the trench between the intersections of Sixth and Seventh streets, had, on said date, become in such condition that it was from eight to ten inches deep along its middle portion, this depth tapering out to about three inches at each end, and was, as above said, about twenty inches wide and extended in length to about the middle of the street, and at said date this condition as to depth had been in existence for a month, or, according to some witnesses, six weeks. The effect of this was that when a car or truck would attempt to cross directly over this trench the wheels would fall therein, and one or more of the witnesses said that some of the wheels would go so far down that only the sharp edges of the brick on each side of the trench would prevent them from going down further. The natural result was that those using this street in the daytime, and those at night who knew of it, would often, if not usually, go around the trench to avoid the danger of injury to machinery and to passengers.

At 8:10 o'clock on the night in question, appellee was traveling on Bouie street going south on a motorcycle at about fifteen to twenty miles an hour. He was accompanied by a passenger in a side seat, attached to the motorcycle on the right side thereof. It was a dark night, and appellee did not know of the location of said trench in the street. The trench was not lighted or otherwise guarded. The light on the motorcycle, and such street lights as there were, did not disclose it to appellee. He was proceeding on his right-hand side of the street and about two or three feet from the curb; and he and all his witnesses say that he did not vary or turn from his right-hand side, and was on that side when the collision, now to be mentioned, occurred.

At the same time an automobile driven by A.A. Smith was traveling north on said street, on his own right-hand side, at about fifteen or eighteen miles an hour. Smith knew of this trench, of its danger to an automobile and the passengers therein, and of its approximate, although not of its exact, location. When he approached the trench, and just before arriving at that point, he slowed down slightly and swerved or turned to the left to go around the trench, but in attempting to do so he missed his calculation of entirely clearing the trench, his right front and rear wheels fell into the trench, causing him for the moment to lose control of the car, and at the same time caused the car to proceed much further to the left and out of control to a point about twenty-five feet beyond and to the left of the end of the trench where the car collided with appellee's motorcycle, and, becoming entangled with the motorcycle, dragged it for a distance of about thirty feet therefrom to the opposite side of the street. Appellee was seriously injured in the collision, and having brought suit he recovered judgment against both the gas corporation and the city, and from this judgment the defendants appeal.

The above-condensed statement of facts is taken from the testimony given in behalf of plaintiff, and which now, because of the effect of the finding of the jury, must be accepted as true, unless overwhelmingly contradicted, and such is not the case, as a careful examination of the record has disclosed.

The principal argument of appellants is that they should have had the peremptory instruction requested by them. The general proposition upon which this argument is based is the contention that the injury was produced and proximately caused, not by the negligence of the defendants in the matter of the dangerous trench or ditch, but by an intervening, independent, and efficient cause, to-wit, the actions of driver of the northbound automobile. And appellants put this contention in such manner that it may be examined under two heads: First, they say that the action of the driver of the automobile in attempting to go around the trench or ditch, whereby he placed himself on his left-hand side of the street, was the proximate cause of the injury. This point is not well taken for three reasons, only one of which is necessary here to state. All the authorities agree that when there is an obstruction or pitfall on the right-hand side of the street, the driver of an automobile has the right to drive to his left around the obstruction and to be on the left-hand side of the street temporarily and for the necessary time and distance to enable him to pass the obstruction or pitfall, if in doing so he exercise the proper degree of care as regards others using the street in that immediate vicinity. 3-4 Huddy Automobile Law (9 Ed.), p. 172; 1 Berry Automobiles (6 Ed.), p. 242; 29 C.J., p. 653; 42 C.J., p. 909. There is no dispute that Smith, the automobile driver, was keeping a reasonable lookout, and that when he entered upon the making of the turn he saw appellee about one hundred twenty-five to one hundred fifty feet distant. There was then plenty of time for him to make the turn and get back within his right-hand side before the arrival of the motorcycle, provided the motorcycle was approaching at a reasonable rate of speed, which the automobile driver had the right to anticipate would be the case, and which according to his record was in fact the case. And before turning to the left the automobile driver did not have to wait merely because he saw another vehicle approaching in the distance, if, as said, he had time to make the turn and get back within his own side before the arrival of the other vehicle within the particular space to be occupied in taking the turn. We have recently decided a case involving, in principle, the point stated in the foregoing sentence. See Myers v. Tims, 161 Miss. 872, 138 So. 578.

Second, appellants say that after the automobile driver had entered upon the making of the turn to avoid the trench and had in the attempt fallen therein, his action thereafter in continuing to the left until he struck the motorcycle was then and there that of an intervening, independent, and efficient cause which insulated the injury from the negligence of the defendants. In stating the principle upon which appellants rely, the courts have used several forms of expression, thereby seeking to make the principle plain when applying it to the particular case in hand. For the same purpose, we shall attempt to state that principle as follows: If the force which causes the injury is put in operation or motion by what is the negligence of the defendant, and that force or motion is still in progress or operation and has not lost its identity and continuity, as such, when the injury occurs, then the negligence which puts the injurious force in operation is the proximate cause. But when a new and independent force intervenes between the negligence of the defendant and the injury and that new and independent force or power or agency is then and there of sufficient strength or operative force to overcome and substantially supersede the original force or motion, that is to say, if the new and independent force or power is actually an efficient force or power, then the new force becomes the proximate cause, and the original cause, having been superseded, becomes the remote cause. See the review of the authorities in the recent case, Southern Pacific Co. v. Ralston (C.C.A.), 62 F.2d 1026.

Four eyewitnesses, two of whom were standing in a yard immediately opposite to the place where the collision occurred, testified that, when the automobile fell into the trench, the effect of that happening was to cause the driver to lose control of the car, and that he did thereby lose control and that the car proceeded out of control and sharply to its left until it collided with the motorcycle, and these witnesses give the facts, which may be termed the mechanics of the occurrence and which justified them in stating that the car went and remained out of the control of the driver. The latter testified that he did not lose control, but that immediately after falling into the trench he turned to his right and that the collision occurred actually on his right-hand side of the street. His statement in that regard was much discredited, however, by the testimony of three witnesses, to the effect, that on the night of the collision and a short while thereafter at the hospital, this automobile driver stated to those three witnesses that the accident resulted from his losing control of his car. The jury believed, and the said testimony supports them, that the car was by its fall into this trench thrown out of the control of its driver, and that this loss of control continued until the collision on the driver's extreme left-hand side of the street. Such being the case, that which put the car out of control and at the same time caused the car to go sharply into the extreme left of the street, to-wit, the negligent condition of the trench or ditch, was the force or power which caused the injury, for it was still in continuity of operation and progress when the injury occurred, and no new force or power had intervened which was of sufficient strength or operative force to overcome or substantially supersede it.

What we think actually happened when we take the entire record, viewing it, of course, in the light of the verdict, was this: When the car struck this trench it was caused, for the physical reasons which we shall later mention, to suddenly swerve further to the left than the driver had intended, and that this sudden swerve took the automobile entirely over into the left-hand side of the street, during which time and up to which point control had been lost, but that after that moment and at that latter place the driver regained control and thereupon did turn to the right, but too late to be able to clear the space within which the motorcycle had to pass; and that before the clearance could be made, after control was regained, the motorcycle collided with the left front end and left front fender of the automobile, thus reconciling the other facts with the condition of the automobile and motorcycle when the vehicles came to a rest on the opposite side of the street; and to some extent reconciling the testimony of the automobile driver who says he did turn to the right after he struck the trench. But it is obviously immaterial that he regained control, when that event occurred only after the car, during the time it was out of control, had got so far to the left that the restored control was too late to be effective to get the car out of the way.

Appellants contend also that the peremptory instruction should have been granted because the collision and the consequent injuries complained of were not such as could reasonably have been foreseen as being the natural and probable results of the condition of the trench or ditch. The court submitted that question to the jury in two instructions, one of which is worded as follows: "The court further instructs the jury for the defendants that they are liable in law only for such consequences of the negligence complained of in this case as could have been foreseen as being the natural and probable results of such negligence; and if you believe that the collision between the motorcycle and automobile in which plaintiff was injured was not such an event as might reasonably have been foreseen by defendants, as the natural and probable consequence of its alleged negligence, then you should find for the defendants." This instruction embodies everything which in matter of law appellants contend for in this connection, and unless there is substantially nothing in the evidence and in the fair inferences to be deduced therefrom after the application of sound reason and common knowledge thereto in support of appellee's case on this point, then the peremptory instruction on that point was correctly refused, and the verdict of the jury in response to the quoted instruction given at the request of appellants must be allowed to stand.

The trench or ditch was made by taking out the necessary number of bricks to produce the twenty inches, or thereabout, in the width of the trench. These bricks were removed in regular rows from the curb to the center of the street, leaving at the top of each side of the trench a sharp right-angled edge or rim which extended in a comparatively smooth and regular line the entire length of the trench, and the concrete base was removed to correspond with the lines of the removal of the brick. We have already mentioned the condition as to the depth, in which the trench was allowed by defendants to remain and the considerable period in which this condition had existed, and the dangers thereby produced. It was but natural, therefore, that drivers of automobiles would go around this trench, as they had a right to do. There was no warning light at this trench to caution automobile drivers at night of its presence or of its exact location. On a dark night such as this was, and of which there are many, it was a thing to be reasonably anticipated by those of reasonable prudence that many of those who knew of the trench would not be able exactly to locate it while driving and in attempting to go around it would miscalculate its precise location and would fall into it in that attempt. It was also for the same reasons a matter to have been reasonably anticipated that many of those so driving, and at night, although they might know of the approximate location of the ditch but not knowing precisely, would suddenly come upon it, without previous realization that they were so near to it, and that they would then turn at once to the left in the attempt to avoid it, and, not being able to do so entirely, would fall into the trench at an angle therewith, and that in such a situation the natural result would be, a result which the forces of nature itself would bring about, that the front right wheel, striking the sharp, smooth rim at the top of the farther side of the trench at an angle, would be turned and would slide along the wall of trench and in the course and direction of the trench, and therefore toward the left side of the street, and that this impetus or impulse, unless the car were traveling at an unusually slow rate of speed, would tend to cast the car into the extreme left side of the street, and inescapably into the path of other vehicles using that side, in a street of heavy traffic, as was this street.

These are some of the things in the said connection which the jury were entitled to consider and upon which it was their duty to deliberate, and at the same time the inquiry involved is typical of those things which should be submitted to the jury, so as to have brought to bear thereon the general experience, practical sense, and common knowledge of all prudent men in the aggregate, represented for the time being on the jury panel. And it is not necessary, in considering this question of foreseeability, adopting a coined word which is now sometimes used, that the wrongdoer could have foreseen the particular injury, or the precise form or the particular manner in which the injury occurred. It is sufficient that the consequence of the negligence was the natural and probable result thereof, although it might not have been specifically contemplated or anticipated. Cumberland Telephone Co. v. Woodham, 99 Miss. 318, 54 So. 890; and see the numerous authorities gathered in the notes 45 C.J., pp. 918-920.

Appellants complain of several of the instructions granted at the request of appellee. Because of the length to which this opinion has already run, we cannot comment in detail on that feature of the case and must be content with saying that all such inaccuracies as are found in those instructions, when taken together with the instructions granted at the request of appellants and read as a whole, as they must be, are rendered harmless and are cured. Every possible phase of this case, which could be turned in any way to the advantage or possible exculpation of appellants, was presented to the jury by liberal instructions granted in appellants' behalf; and in every other respect not one thing that untiring industry and legal skill could do for appellants' defense in this case has been overlooked or in the least neglected.

Finally, it is contended that the verdict is excessive. The amount of it does seem to be unduly large, but that the injuries were of the most serious nature there is no question. It is a delicate matter for this court to undertake to order a verdict reduced when, as in this case, the plaintiff subjected himself to a personal inspection or examination of his injuries before the jury, and when the defendants have not undertaken to dispute the injuries or the nature or effects thereof by any countervailing evidence. In such a case the grounds for our interference must be most clearly apparent and made particularly strong; and we think appellants have been unable to do that in this case.


Summaries of

Public Service Corp. v. Watts

Supreme Court of Mississippi, Division B
Nov 13, 1933
168 Miss. 235 (Miss. 1933)

In Public Service Corp., et al v. Watts, 168 Miss. 235, 150 So. 192, where the corporation had not kept filled an excavation which it had dug in the street, this omission was held to be a contributing proximate cause of the injury to Watts, on a motorcycle traveling south, when he was struck by the automobile of Smith, going north, as he cut to the left to dodge the excavation, lost control of his machine, and collided with the motorcycle.

Summary of this case from Matthews v. Thompson
Case details for

Public Service Corp. v. Watts

Case Details


Court:Supreme Court of Mississippi, Division B

Date published: Nov 13, 1933


168 Miss. 235 (Miss. 1933)
150 So. 192

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