Summary
In Evans Motor Freight Lines v. Fleming, 184 Miss. 808, 185 So. 821 (1939), a motorist, blinded by the lights of an oncoming truck partly on the wrong side of the road, swerved to the right to avoid a collision, and struck and killed a pedestrian off the pavement.
Summary of this case from Layton v. Cook's PharmacyOpinion
No. 33499.
January 30, 1939. Suggestion of Error Overruled February 27, 1939.
1. AUTOMOBILES.
Where motorist, to avoid collision with on-coming truck on wrong side of highway, swerved automobile to right and off paved part of highway and struck pedestrian whom motorist did not see owing to blinding lights of truck, owner of truck was liable for pedestrian's death.
2. AUTOMOBILES.
Where motorist, to avoid collision with on-coming truck on wrong side of highway, swerved automobile to right and off paved part of highway and struck pedestrian whom motorist did not see owing to blinding lights of truck, motorist was negligent in not slowing down and stopping when lights of truck blinded him and in proceeding at high rate of speed in blinding condition.
3. AUTOMOBILES.
Where motorist, to avoid collision with on-coming truck on wrong side of highway, swerved automobile to right and off paved part of highway and struck pedestrian whom motorist did not see owing to blinding lights of truck, negligence of motorist in not slowing down and not stopping did not constitute intervening cause which would cut off liability of truck owner for negligence of her truck driver.
4. TRIAL.
Instructions given to both parties must be considered together.
5. TRIAL.
Refusing requested instruction was not error, where court gave jury law applicable to case.
APPEAL from circuit court of Forrest county; HON.W.J. PACK, Judge.
Leathers, Wallace Greaves, and Eaton Eaton, all of Gulfport, for appellants.
The question of the brilliancy of the rays of light radiated by the headlights on the appellant's truck is controlled by the provisions of Section 5575, Code of 1930.
Frazier v. Hull, 157 Miss. 303, 127 So. 775.
The undisputed testimony and the physical facts that are clearly established by it leave no doubt that, regardless of the negligence charged and proved against the appellant, the plaintiffs' decedent was killed as the proximate result of the grossest sort of negligence on the part of the defendant J.P. Miles, in the operation of his automobile under the circumstances clearly demonstrated by the record, coupled with the contributory negligence on the part of the deceased in using the west side of the highway under the circumstances then surrounding her. In fact, the record unquestionably demonstrates wantonness on the part of the defendant J.P. Miles, which culminated in the death of the deceased, while he was violating every known rule respecting the reasonably safe operation of a motor vehicle on a public highway.
Chapter 309, sec. 1, Laws of 1936, amending sec. 5569, Code of 1930; sec. 5571, Code of 1930; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8.
In numerous decisions, this Honorable Court has held that the driver of an automobile upon a public highway in this state has not the right, under the law, to a clear road, but he must anticipate the presence of persons and vehicles thereon, and must at all times drive at such a rate of speed as will enable him to avoid injury to such persons and vehicles when they come under his observation.
Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Snyder v. Campbell, 145 Miss. 287, 110 So. 678, 49 A.L.R. 1402; Frazier v. Hull, 157 Miss. 303, 127 So. 775; Terry v. Smylie, 161 Miss. 31, 133 So. 662; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840.
While it was a violation of the provisions of Section 5574, Code of 1930, for the plaintiffs' decedent to use the west side of the highway, and, under the circumstances, she was guilty of contributory negligence in so doing, still, as we have already seen, the law imposed a mandatory duty upon the defendant, J.P. Miles, to maintain and exercise a vigilant lookout for her and to refrain from killing her with his automobile.
Avery v. Collins, 171 Miss. 636, 57 So. 695; Basque v. Anticich, 177 Miss. 855, 172 So. 141; G. S.I.R.R. Co. v. Williamson, 162 Miss. 726, 139 So. 601; Graves v. Johnson, 179 Miss. 465, 176 So. 256.
We concede, arguendo, as we are required by familiar law to do, that the appellant's trucks were being operated on the west half of the paved portion of the highway, to the west of the center thereof, by the appellant's drivers, Howell Smith and Jack Cook, and, in so doing, the provisions of Sec. 5574, Code 1930, were violated by such drivers, which constituted negligence on their respective parts; but, we say that, after allowing the plaintiffs the full benefit of all of the testimony favorable to them on that question and the benefit of all reasonable inferences that may be drawn from such testimony, no causal connection between such alleged negligence and the death of the deceased is shown by the evidence. Such negligence, if any, amounts to no more than a remote cause in the law of proximate cause. There is no chain of causation between the alleged negligence imputed to the appellant and the death of the deceased, in contemplation of law. At most, the alleged negligence imputed to the appellant could only afford a condition whereby the criminal negligence, or wantonness, on the part of the defendant J.P. Miles could kill the deceased. The evidence clearly demonstrates that there was nothing done by either of the appellant's truck drivers that proximately contributed to the death of the deceased, in contemplation of the law of proximate cause.
It is well settled in the law of negligence that to constitute proximate cause creating liability for negligence the injury must have been the natural and probable consequence of the negligent act complained of.
Thompson v. Miss. Cent. R. Co., 175 Miss. 547, 166 So. 353; Public Service Corp. v. Watts, 168 Miss. 235, 150 So. 192; Oliver Bus Lines v. Skaggs, 174 Miss. 201, 164 So. 9; Southern Pacific Co. v. Ralston, 62 F.2d 1026; Louisville N.R. Co. v. Daniels, 135 Miss. 33, 99 So. 434, 34 A.L.R. 516; Bufkin v. Louisville N.R. Co., 161 Miss. 594, 137 So. 517; Trico Coffee Co. v. Clemens, 168 Miss. 748, 151 So. 175; Lewis v. Graves, 262 Ky. 600, 90 S.W.2d 1040; Stone v. City of Philadelphia, 302 Pa. 340, 153 A. 550; Hoffman v. City of McKeesport, 303 Pa. 548, 154 A. 925.
Even though the appellant's trucks may have been occupying the west side of the paved portion of the highway, as it is charged in the declaration and as it is shown by the testimony of the witnesses for the plaintiffs, appellees here, and by the testimony of the defendant J.P. Miles, both the deceased and the defendant J.P. Miles were well aware of the obstruction thus created long before the death car arrived at the scene of the accident. Under the law applicable to the situation thus created and the positive testimony of the eyewitnesses, who testified for the plaintiffs, and the testimony of the defendant, J.P. Miles, the said defendant J.P. Miles was not, in any wise, relieved of the mandatory duty enjoined upon him by law to exercise a vigilant lookout for the pedestrains then using the west side of the highway and to avoid striking them. The positive testimony on behalf of the appellees and the testimony of the defendant J.P. Miles, together with the reasonable inferences to be drawn therefrom, clearly disclose that the east side of the highway devoted to travel was not obstructed in any manner. In these circumstances, he was not allowed by law to stand his ground on the west side of the pavement and to proceed with unslackened speed ahead, without exercising the vigilant lookout mandatorily required by law, and to strike and kill the deceased simply because the appellant's truck drivers were violating the law of the road.
Aycock v. Burnett, 157 Miss. 510, 128 So. 100; Myers v. Tims, 161 Miss. 872, 138 So. 578; Gough v. Harrington, 163 Miss. 393, 141 So. 280; Whatley v. Boolas, 177 So. 1.
Currie Currie, of Hattiesburg, for appellees.
There is absolutely no escape from the fact that the motor truck ran the automobile out of the highway, in violation of law, at the very time and place where the automobile struck and killed the deceaseds. No intelligent and honest jury could possibly reach any other conclusion or verdict. It is impossible to reason away from the fact, conclusively established by this testimony, that the motor truck did then and there actually run the automobile out of the highway, in violation of law, and that while Miles, the driver of the automobile, was then and there acting in the emergency disclosed by this evidence, in an effort to save himself and his mother, his automobile struck and injured and killed the deceaseds, and the liability of the appellant is absolute. The appellees were entitled to a peremptory instruction against the appellant on the question of liability.
The case at bar is one in which the highway was perfectly straight for a long distance with an unobstructed view and with no natural obstructions in the way of motor vehicle travel on either side, and with ten feet of pavement on each side, on which to travel, and the proof in the case shows that the drivers of the motor trucks saw the pedestrians and the automobile on the highway proceeding south, before the injury, and death of the deceaseds and in ample time for said motor trucks to turn back on their right side of the highway before meeting said pedestrians and said automobile, with no obstructions of any sort in the way to prevent them from turning back to their right hand side of said highway, where the law required them to be, and on this state of facts it is respectfully submitted that the driver of the automobile did have the right to assume that these motor trucks would seasonably or reasonably turn back on his proper right hand side of the highway.
2 Blashfield Cyc. Automobile Law and Practice, Perm. Ed., par. 919, page 60.
A motorist has a right to assume that the driver of a vehicle coming from the opposite direction will obey the law, and to act upon such assumption in determining his own manner of using the road.
Morrison v. Clark, 72 So. 305, 196 Ala. 670; Nelson v. California Const. Co., 22 P.2d 282, 131 Cal.App. 757; Curry v. Williams, 293 P. 623, 109 Cal.App. 649; Dania Lbr. Supply Co. v. Senter, 152 So. 2, 113 Fla. 332; Balono v. Nafziger, 21 P.2d 896, 137 Kan. 513; Lacy v. Lucky, 140 So. 857, 19 La. App. 743; James H. Demourelle Sons, Inc. v. Hortman Salmen Co., 123 So. 352, 11 La. App. 71; Murray v. Indursky, 165 N.E. 91, 266 Mass. 220; Rice v. Lowell Buick Co., 118 N.E. 185, 229 Mass. 53; Sanderson v. Barkman, 249 N.W. 492, 264 Mich. 152; Columbia Taxicab Co. v. Roemmich, 208 S.W. 859; Belik v. Warsocki, 253 N.W. 689, 126 Neb. 560; Skaggs v. Gypsy Oil Co., 36 P.2d 865; Whitworth v. Riley, 269 P. 350, 132 Okla. 72, 59 A.L.R. 584; Adams v. Fields, 162 A. 177, 308 Pa. 301; Dumont v. Cromie, 130 A. 679, 99 Vt. 208; Luther v. Pacific Fruit Produce Co., 255 P. 365, 143 Wn. 308; Gerbing v. McDonald, 229 N.W. 860, 201 Wis. 214, 229 N.W. 864, 201 Wis. 222; Wald v. Bd. of Comrs. of Port of New Orleans, 124 So. 701, 14 La. App. 337.
A driver, therefore, proceeding on the right side of the traveled way, may assume that the driver of a vehicle approaching on the same side, or on his left hand side, will do all that a reasonably prudent person, under all the circumstances, would do to avoid a collision, which ordinarily would be to yield half the way, or to turn out in time to avoid a collision, and that such driver will not force him, in violation of the statute or ordinance, or the law of the road, to turn from the part of the road on which he is lawfully driving.
Lemmon v. Broadwater, 108 A. 273, 7 Boyce 472; Lacy v. Lucky, 140 So. 857; Pruett v. Brantley, 127 So. 2; Bazile v. J.F. Landry Co., 122 So. 901; Goodson v. Schuster's Wholesale Produce Co., 120 So. 689; Aycock v. Burnett, 128 So. 100, 157 Miss. 510; Stanton v. Jones, 59 S.W.2d 648; Hatch v. Daniels, 117 A. 105, 96 Vt. 89; Johnson v. Kellam, 175 S.E. 634; Whipple v. Booth, 154 S.E. 545, 155 Va. 416; Lawe v. City of Seattle, 163 Wn. 362; Luther v. Pacific Fruit Produce Co., 143 Wn. 308; Kull v. Advance-Rumely Thresher Co., Inc. 245 N.W. 589, 209 Wis. 565; John v. Pierce, 178 N.W. 297, 172 Wis. 44; Childress v. Ford, Baker Davis, 7 La. App. 138; O'Malley v. Eagan, 43 Wyo. 233, 77 A.L.R. 582; Babbitt Motor Vehicle Law (4 Ed.), par. 587, page 397; Muirhead v. Challis, 240 N.W. 912; Murray v. Indursky, 266 Mass. 220, 165 N.E. 91; Shirley v. Ayers, 201 N.C. 51, 158 S.E. 840.
The rule is that persons in vehicles meeting on the highway shall each seasonably turn to the right so as to allow the other to pass without collision.
Berry, Automobiles (3 Ed.), par. 234, pages 246, 249; Morrison v. Clark, 196 Ala. 670, 72 So. 305; Segarstrom v. Lawrence, 64 Wn. 245, 116 P. 876; Bragdon v. Kellogg, 118 Me. 42, 105 A. 433.
It is respectfully submitted that Miles, the driver of the automobile, did have the right in this case to assume that Howell Smith, the driver of the motor truck in question, who was unlawfully and unnecessarily driving the same over on the left hand side of said highway, as shown by the conclusive evidence in the case, and in plain violation of the statute, would seasonably turn back on his proper right hand side of said highway in time to avoid a collision. It is further respectfully submitted that the appellant in this case will not be able to avoid liability on the ground that it was the duty of Miles, the driver of the automobile, to operate his automobile over on the left hand side of said highway, proceeding south, in violation of the statute of this state.
An intervening cause is one which moves from sources independent of the plaintiff and defendant.
2 Words Phrases 2d, page 1170.
Where, though there may be some intervening cause or agency, such cause or agency and its probable or reasonable consequences are such as could reasonably have been anticipated by the original wrongdoer, the causal connection between the original wrongful act and the subsequent injury is not broken, and an action will lie therefor. A wrongdoer is not exonerated from liability by the fact that intervening events or agencies contributed to the injury, if the injury sustained was such as, according to common experience and the usual course of events, might reasonably have been anticipated.
Watson on Damages for Personal Injuries, par. 160, page 205, and par. 65, page 69.
That the deceaseds and their companions were acting in an emergency and in the presence of impending danger in getting out upon the shoulder of the highway on the right hand side thereof, going south, will not admit of doubt. That said emergency and impending danger was created by the negligent and unlawful conduct of Howell Smith, the agent of the appellant, in unnecessarily, negligently and unlawfully driving the motor truck of the appellant upon and over the left hand side of said highway, proceeding north, will not admit of doubt.
Scott v. Shepherd, 2 Blackston's Reports 892.
There is no escape from liability for the appellant in this case.
Clark v. Chambers, Queen's Bench Division, Vol. 3, (1877-8) page 327; Lowery v. Manhatten R.R. Co., 99 N.Y. Rep. 158; Billman v. Indianapolis, Cincinnati Lafayette R.R. Co., 40 Am. Rep. 230, 76 Ind. 166; Vandenburgh v. Truax, 4 Den. 465; Thomas v. Winchester, 2 Seld. 397; Illidge v. Goodwin, 4 Eng. Com. Law Rep. 272; Myers v. Malcolm, 6 Hill's Rep. 292; Cole v. Fisher, 11 Mass. 137; Cumberland Tel. Co. v. Woodham, 54 So. 890; Harrison v. Kansas City Elec. Light Co., 195 Mo. 606; Green v. Atlantic Charlotte Airline Ry. Co., 126 S.E. 441, 38 A.L.R. 1448; Public Service Corp. v. Watts, 150 So. 192; Leone v. Bray, 3 East 595.
If the effect was reasonably to have been foreseen, and was, in the usual course of events, likely to follow from the cause, the person putting such cause in motion will be responsible, even though there may have been many intervening events or agencies between such cause and its consequence.
Watson on Damages for Personal Injuries, par. 62, page 66.
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 of were not the immediate result of his act.
Watson on Damages for Personal Injuries, par. 65, page 69, and par. 83, page 96.
Argued orally by R.A. Wallace, for appellant, and by Neil T. Currie and Alexander Currie, for appellee.
The appellees, J.W. Fleming and his children, brought suit against the Evans Motor Freight Line, operated under that trade name by the proprietor, Mrs. Dorothy Irma Evans, and J.P. Miles and Joe N. Miles, for the death of Eva Fleming, wife of J.W. Fleming, and mother of the other plaintiffs. In the early evening of December 20, 1937, after dark, the deceased, Mrs. Fleming, accompanied by her son, J.W. Fleming, Jr., and her daughter, Margie, and by her husband's sister, Marie, was walking south along the west side of highway 49, which was the right hand side as they were facing, about a mile and a half north of Brooklyn, Forrest county, when she was struck and killed by a 1937 Chevrolet coach, which was being driven southward along the highway by J.P. Miles, with his mother, Mrs. Joe N. Miles, on the seat beside him. At the place where the accident occurred the highway was paved for a width of twenty feet with a material known as black-top, abutted on each side by a berm or shoulder, of dirt and gravel, about five feet wide, and substantially on the same grade as the surface of the pavement. Two trucks belonging to Mrs. Evans were traveling north along highway 49, in the direction of Hattiesburg, the foremost truck driven by Howell Smith, and the one behind by Jack Cook, employes of Mrs. Evans. The foremost truck, which was some seven hundred feet ahead of the other truck, consisted of a one and a half ton low-geared Chevrolet motor truck chassis, to which was attached a large, heavy semi-trailer, seven feet four and a half inches wide; and both trucks were equipped with mechanical speed governors.
It appears that in crossing the hill or elevation, just before the accident occurred, Miles, driving the Chevrolet, and proceeding south, was blinded by the lights of the appellant's truck. According to the proof, which was accepted by the jury, the truck was traveling north, but on the west side of the highway, instead of the east side; and Miles, the driver of the Chevrolet, testified that the truck, as they approached each other, did not turn to the right, and get on the east side of the road, but continued on the left side, meeting the car driven by Miles, going in the opposite direction on his right side of the road. In order to avoid a collision with the truck, Miles swerved his car to the right, and off of the paved part of the highway, striking and killing Mrs. Fleming and her son, whom he claims that he did not see, owing to the blinding lights of the truck, until he was within five or six feet of them — or within a very short distance; and that he was traveling approximately forty miles an hour.
The persons who accompanied Mrs. Fleming and her son testified that as the Chevrolet car came over the hill they moved to the berm or shoulder of the highway, off the pavement; and that they saw the light of the Chevrolet on Mrs. Fleming and her son as it approached.
There was testimony to show that the Chevrolet passed the truck at about the point where the deceased was killed; that the trucks were equipped with dimmers, the drivers of the trucks testifying to have dimmed the lights, while others testified that the lights were not dimmed. The two trucks traveled together, being required to remain in contact with each other — the hindmost truck to signal the one in front by certain flashes of the lights, to indicate that it should stop. The driver of the hindmost truck testified that the two trucks did not stop immediately after the accident, for the reason that the foremost truck had gone over the top of the hill, and he followed, to stop it; which he claimed to have done, and that the two drivers returned to the scene of the accident.
The testimony of Miles and his mother was to the effect that when they felt the impact of the car with the body, it was brought quickly to a stop, and they returned to where the deceased lay, off the paved part of the highway, Mrs. Fleming's head lying near the paved part, but on the shoulder or graveled part of the highway.
There was a judgment for the plaintiffs against both defendants — Mrs. Evans, operating as the Evans Motor Freight Line, and J.P. Miles; but there was a peremptory instruction for Joe N. Miles, who was not in the Chevrolet car when the accident occurred. The latter owned the car, but it was being driven by his son, J.P. Miles, nineteen years of age, who was accompanied by his mother the wife of Joe N. Miles, who had been to the city of Hattiesburg on a shopping mission, and was returning home.
The testimony in the case is voluminous. The main assignment of error is that there was no liability on the part of Mrs. Evans, even though her trucks were being operated on the wrong side of the road, because, it is argued, the fatal accident was produced by the Chevrolet car, driven by Miles, as an independent intervening cause, and was solely the result of negligence on the part of Miles; that there was no proper connection between the negligence of the truck drivers and the death of Mrs. Fleming and her son which would cause liability on the part of Mrs. Evans, as owner of the trucks being operated by her servants or employes.
The appellant, Mrs. Evans, admits that the evidence establishes, or is sufficient for the jury to find, the following: "(1) The highway where the fatal accident happened runs generally north and south; (2) the highway is straight for at least one-quarter mile north and one-half mile south of the place of the accident; (3) the highway right of way between the east and west boundary lines is about 50 feet wide, with a slab of black-top paving material 20 feet wide in the center, which is abutted on each side by a berm or shoulder about five feet wide, making that part of the highway devoted to vehicular use 30 feet wide; (4) there is a crest of a hill at a point on the highway estimated by the witnesses for the plaintiffs and the defendant, J.P. Miles, to be from 450 to 1,000 feet north of the place of the accident, from which point the highway slopes toward the south, to a point a great distance south of the place of the accident; (5) at the time of the accident there were no obstructions within the right of way of the highway from the crest of the hill to a point more than one-half mile south; (6) the plaintiffs' decedent and her companions were walking south on the west side of that part of the highway devoted to travel, in the nighttime, at a point estimated by the witnesses for the plaintiffs and the defendant, J.P. Miles, to have been from 450 to 1,000 feet south of the crest of the hill; (7) at the same time, the defendant, J.P. Miles, was driving a new Chevrolet automobile south on the west side of the paved portion of the highway at a rate of speed estimated by him to have been 40 miles per hour, and this automobile was, then, proceeding over the crest of the hill in the same direction the plaintiffs' decedent and her companions were traveling; (8) at the same time, two of the appellant's motor trucks, one a considerable distance behind the other, the foremost one being driven by Howell Smith and the hindmost one being driven by Jack Cook, both displaying brilliant headlights, were traveling north on the west side of the pavement — traveling to the west of the center or thread of the pavement — and were approaching the plaintiffs' decedent and her companions from the south; (9) the deceased and her companions were well aware of the approach of the automobile from behind them and the approach of the appellant's trucks in front of them; (10) when the Chevrolet automobile reached a point about 50 feet north of the crest of the hill, the driver observed the rays of the headlights displayed by the oncoming trucks and, at the very instant he mounted the crest of the hill with his automobile, he looked directly into the headlights displayed by the foremost truck, and was blinded by the rays of light radiated by them; (11) the plaintiffs' decedent and her companions were, then, walking south on the west side of the pavement between the automobile approaching from the north and the trucks approaching from the south, and the rays of light radiated by the headlights displayed by the two vehicles illuminated all of the area on the highway lying between them; (12) the defendant, J.P. Miles never saw the plaintiffs' decedent and her companions until his automobiles was in the act of striking her and her son, who were killed by it, even though she was, then, well within the area on the highway that was illuminated by the rays of light radiated by the headlights on the foremost approaching truck; (13) from the time the automobile driven by the defendant, J.P. Miles, mounted the crest of the hill behind the plaintiffs' decedent and her companions to the time when it struck and killed her and her son, it and both of the appellant's trucks were traveling to the west of the center or thread of the pavement, and neither of the trucks turned to its right, thereby leaving, unobstructed, 15 feet of road lying east of the center of the pavement; (14) notwithstanding the obstruction of the west side of the pavement by the foremost truck which was in plain view of the defendant, J.P. Miles, the said defendant continued to drive his automobile with unslackened speed ahead on that side of the pavement, until he met it, when he, then, swerved his automobile to his right, placing the right wheels of it on the west berm or shoulder, and, while he was in the act of thus passing the truck, his automobile struck and killed the plaintiffs' decedent and her son, who were then walking on the west berm or shoulder, from which point his automobile continued forward more than 100 feet before he could bring it to a stop; (15) the defendant, J.P. Miles, traveled about two-thirds of the distance between his automobile, when it reached the crest of the hill, and the place on the highway where the foremost truck was traveling about one-third of such distance; and (16) at the time the defendant, J.P. Miles, killed the plaintiffs' decedent, there was sufficient unobstructed space on the highway lying east of the center of the pavement for two automobiles such as he was operating to have passed safely."
Conceding, as the appellants do, the establishment of these propositions, which in our judgment the evidence is sufficient to establish, there was liability against Mrs. Evans, for the reason that the negligence of her drivers was the proximate cause of the swerving to the right of the Chevrolet car, to avoid a collision which was otherwise inevitable. While J.P. Miles was negligent in that he did not slow down and stop when the lights of the truck blinded him, and in proceeding at a high rate of speed in a blinded condition, and in not seeing the deceased traveling along the right side of the highway, and in the direction in which they were traveling, it cannot be said that the negligence of the appellants was insulated by the negligence of Miles; nor can it be said that the negligence of the appellant was not a contributing, proximate cause of the death of Mrs. Fleming.
The court below gave an instruction at the instance of the appellant, that the negligence of the deceased, in being on the wrong side of the highway, should be considered, and should diminish the damages, if the jury found the appellants to be liable, or guilty of negligence, in the proportion borne by the negligence of the deceased to that of the appellants.
The negligence of the deceased, under the facts of this record, was very slight, consisting only in being on the righthand side of the highway, instead of the lefthand side, but off of the traveled part of the highway, on the berm or shoulder, where it was not expected, or at least was unlikely, that any injury would be inflicted on persons at that point by automobiles passing along the same side of the highway in the same direction, because the paved part of the highway was ample for the passage of the vehicles, without leaving the pavement.
We therefore think that the jury were warranted in finding negligence and liability therefrom against the appellants. We have examined the instructions given to both parties, and think that, taken together as they must be, they give the jury the law applicable to the case, and that there was no error in refusing other instructions requested by the appellant and refused by the court. Neither do we think there was error in the instructions given on behalf of the plaintiff. We have examined all the assignments of error, which we think are not well taken, and do not deem it necessary to discuss any of the assignments of error not discussed in the foregoing.
The judgment of the court below will, therefore, be affirmed.
Affirmed.