Opinion
No. 32432.
December 7, 1936.
1. AUTOMOBILES.
City ordinance, fixing automobile speed limit outside business district, not statute fixing lower limit on highways in closely built-up territory, controls speed in city outside such district (Code 1930, sec. 5569).
2. AUTOMOBILES.
Instruction that it was truck driver's duty to operate truck at safe rate of speed held properly refused; law requiring only reasonably safe rate (Code 1930, secs. 5569, 5588).
3. TRIAL.
Refusal of plaintiff's instruction embodying principle of contributory negligence after giving him instruction embodying such principle was justified.
4. TRIAL.
Instruction that plaintiff's failure to use physician, who attended him after injuries sued for, as witness may create presumption that such physician's testimony would be unfavorable to plaintiff, held not erroneous as abolishing protection of privileged communications statute (Code 1930, sec. 1536).
5. EVIDENCE.
Party's failure to produce witness, whom such party, but not his adversary, can produce, raises presumption that facts known to such witness, if any one, do not exist.
APPEAL from the circuit court of Harrison county. HON.W.A. WHITE, Judge.
Mize, Thompson Mize, of Gulfport, for appellant.
The court erred in refusing to grant a peremptory instruction for the plaintiff. This instruction requested reads as follows: "The court instructs the jury for the plaintiff that the defendants were negligent in operating the truck which the defendant Cody was driving at a greater rate of speed than 20 miles an hour."
The defendant Cody admitted that he was driving the truck twenty-five miles an hour at the time of the collision. That the territory contiguous thereto was closely built up and that he had just passed 36th Avenue. That the street was straight but that he did not see the plaintiff's car until he was in one hundred or one hundred fifty feet of it. It was clearly negligence on the part of the driver in driving at twenty-five miles an hour on a straight street with unobstructed view and not see as large an object as an automobile.
The city ordinance is substantially the same as the state laws.
Section 5569 of the Code of 1930 governs the traffic rules and section 5575 governs with reference to brakes. There was no effort on the part of the defendant to apply the brakes. According to his own testimony he was running his car not less than twenty-five miles an hour on a city street where the territory is closely built up, and where he has a clear view and he did not see the automobile until he was within one hundred or one hundred fifty feet of it. We submit that this is negligence as a matter of law. That if he is going to so operate his automobile truck that he cannot see another automobile until he is within one hundred fifty feet of it, then he should not drive at a speed of twenty-five miles an hour. Under the authorities the defendant was guilty of negligence and this peremptory instruction should have been given.
Ulmer v. Pistole, 100 Miss. 485; Snyder v. Campbell, 145 Miss. 287; Terry v. Smyly, 161 Miss. 31.
It is a violation of the law to operate the truck at a speed greater than twenty miles an hour and the violation of every statute for the protection of the public is negligence. It then becomes a question for a jury to determine as to whether the negligence is the proximate cause of the injury in a great many cases, but certainly plaintiff was entitled to the instruction that the violation of the statute was negligence.
Lucedale Automobile Co. v. Daughrill, 154 Miss. 707; Wheat v. Wheat, 102 Miss. 595.
It is the law in this state that the driver of a car must keep a reasonable lookout for other cars and he must also drive it at no greater rate of speed than is reasonable and proper, having due regard to the traffic and use of the highway, etc.
Snyder v. Campbell, 145 Miss. 287.
It was error of the court to refuse to instruct the jury at the request of the plaintiff in substance that it was the duty of the defendant to operate his automobile at a safe rate of speed, and in a reasonably safe manner, having due regard for the life and limb of the public, and that if the jury believed that the defendant, acting through his agent, failed to do so, and that such action was negligence proximately contributing to the injuries of the plaintiff, then they should find for the plaintiff.
The court erred in refusing the instruction which told the jury if it believed that the defendant was guilty of any negligence proximately contributing to the damages of the plaintiff, if any, then they should find a verdict for the plaintiff even though the plaintiff might have been guilty of contributory negligence, but that it would be the duty of the jury to reduce the damages allowed in proportion to the amount of negligence attributable to the plaintiff. This instruction was absolutely correct.
Section 511, Code of 1930; Y. M.V.R.R. v. Carroll, 103 Miss. 830; Miss. Central R.R. v. Robinson, 106 Miss. 896; I.C.R.R. v. Handy, 108 Miss. 421; Lindsey Wagon Co. v. Nix, 108 Miss. 814; I.C.R.R. v. Archer, 113 Miss. 158; Y. M.V.R.R. v. Williams, 114 Miss. 236; Miss. Central Ry. v. Lott, 118 Miss. 816; Talla Halla Lbr. Co. v. Holliman, 125 Miss. 308; Davis v. Elzey, 126 So. 789; Dent v. Mendenhall, 139 Miss. 271; G. S.I.R.R. v. Saucier, 139 Miss. 497; Morrell Packing Co. v. Branning, 155 Miss. 376.
The error in refusing this instruction was not cured by the giving of another instruction as the court in the giving of this instruction required that the plaintiff's negligence be in a less degree than that of the defendant. Of course, the plaintiff cannot complain of the instruction requested by him, but plaintiff was required to take what he could get, and since the court would not give plaintiff all he was entitled to when the court refused the instruction complained of the plaintiff then took what the trial court would give him, and that was that plaintiff's contributory negligence would not bar recovery if the plaintiff's contributory negligence was less than was the negligence of the defendant. The plaintiff was entitled to the instruction requested without regard to the degree of the negligence of the various parties.
The giving of argumentative instructions and giving undue prominence to a part of the evidence in the case has been condemned by this court.
Potera v. City of Brookhaven, 95 Miss. 974; Hooks v. Mills, 101 Miss. 91.
The plaintiff is not required to prove that his injury was the direct and proximate result of the negligence of the defendant, but if defendant's negligence is one of the contributing causes of the plaintiff's injury then the plaintiff is entitled to recover.
Section 511, Code of 1930; Raglan v. Native Lbr. Co., 117 Miss. 602; Railroad Co. v. Lindsey, 120 C.C.A. 166; Seafood Co. v. Alvis, 117 Miss. 1.
The court erred in giving the instruction with reference to the failure of the plaintiff to call his practicing physician who treated him. Section 1536 of the Code of 1930 provides that the communications between physician and patient are privileged and this privilege can be claimed at any time. The patient does not waive his right to claim the privilege by admitting on cross examination that he was willing for his physician to testify.
Coca Cola Co. v. Simpson, 158 Miss. 390.
If the plaintiff claimed this right then the giving of an instruction couched in the language this instruction is absolutely wipes out the benefit of any such privilege. The giving of the instruction is also a charge on the weight of the evidence in that it singles out certain parts of the evidence and gives undue prominence to it, then proceeds further and states that it may create a presumption that such testimony would be unfavorable to the plaintiff.
R.A. Wallace, of Gulfport, for appellees.
The maximum speed limit on Tenth street, as provided by section 3 of the Municipal Traffic Ordinance which is in the evidence, is thirty miles per hour. This ordinance is duly authorized by part of section 5569, Code of 1930.
The evidence relating to the question of whether or not the territory contiguous to Tenth street is closely built up in contemplation of the provisions of section 5569, Code of 1930, and the provisions of section 3 of the municipal ordinance, relied on by the appellant to support his view that it was negligence per se for the driver of the truck to operate it at a rate of speed of twenty-five miles per hour, rests upon the bare opinions of certain witnesses who testified in the case. These opinions so expressed by the witnesses, for the purposes of a judicial determination of any one of the issues in this case, amounts to no more than conjecture, which has no proper place in judicial proceedings in this state.
Columbus G.R.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277.
The appellant, in his testimony in his own behalf, corroborates the testimony supporting the appellees' theory of the case, in all of its particulars, except he estimated the speed of the truck to have been between forty-five and fifty miles per hour, which the jury repudiated.
The appellee Cody was only required by law to operate the truck with that degree of care and at that rate of speed consistent with the conditions existing in the street he was using; at the time he was using it, the rate of speed at which he could legally travel, and the control of the truck which he was legally required to exercise varied according to the traffic at that particular place; but, in no event, could he legally operate his machine at a rate of speed greater than the maximum speed allowed by the Municipal Traffic Ordinance, which was thirty miles per hour.
Since, by the provisions of section 3 of the Municipal Traffic Ordinance, he was allowed to operate the automobile truck on Tenth street, between Thirty-sixth and Thirty-seventh avenues, at a rate of seped of thirty miles per hour, and his testimony shows he was operating it at only twenty-five miles per hour, it was for the jury to say whether that speed was excessive or not under the circumstances then existing there. Especially is this true since the evidence does not show there were any vehicles using the street at the time except those that were being operated by the appellant and the appellee Cody.
Section 5569, Code of 1930; Section 3, Municipal Traffic Ordinance; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840.
If we should concede, for the sake of argument, that it was a violation of law for the appellee Cody to operate the truck at a greater rate of speed than twenty miles per hour, and that such a violation of law constitutes negligence per se, the giving of the instruction complained of would have done violence to the decisions of this Honorable Court, in its dealings with section 5588, Code of 1930, which provides that, in cases of this nature, the plaintiff shall be deemed to have made out a prima facie case by showing the fact that the damages were caused by the operation of a motor vehicle in violation of any of the provisions of chapter 138 of the Code.
N.O.G.R.R. Co. v. Walden, 160 Miss. 102, 133 So. 241; Natchez Coca Cola Co. v. Watson, 160 Miss. 173, 133 So. 677; White v. Weitz, 169 Miss. 102, 152 So. 484; Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 152, 149 So. 792.
The law is that, if a municipality is expressly authorized by statute to regulate the speed of automobiles on the streets within its corporate limits, an ordinance adopted and enacted by virtue thereof has the force of a state statute; and, in cases of a conflict between such an ordinance and a state statute on the subject, the ordinance prevails, so long as the legislative delegation of authority stands unrepealed.
1-2 Huddy Cyc. Auto Law, page 223, sec. 75.
The law only required the defendants, appellees here, to operate the automobile truck at a reasonable rate of speed under the circumstances surrounding the driver at the time of the collision. There does not exist any rule of law which requires an operator of a motor vehicle to operate it at an actually safe rate of speed, ordinary or reasonable care is all that is required in any event.
3-4 Huddy Cyc. Auto. Law, pages 21 and 22, sec. 9, and pages 26 and 27, sec. 10; section 3, Traffic Ordinance; Teche Lines, Inc. v. Bateman, 162 Miss. 404, 139 So. 159.
This Honorable Court has held many times that the refusal of requested instructions is harmless where other instructions embodying substantially the same principles of law are given.
Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 152, 149 So. 792.
It is clear, from the plain provisions of the statutes that the Comparative Negligence Statute, section 511, Code 1930, cannot and does not become operative in a case until the court shall have declared the defendant in a tort action to have been guilty of negligence as a matter of law, or the jury shall have found from the facts submitted to them by the court that the defendant is guilty of negligence; and that such negligence on the part of the defendant proximately caused the injuries complained of (White v. Weitz, 169 Miss. 102, 152 So. 484; Magers v. O.H. C.C.R.R. Co., 165 So. 416); that the plaintiff is legally entitled to such an amount of damages as will allow the jury to diminish it by a deduction from the total amount of damages awarded the proportionate amount of negligence attributable to the plaintiff in such action, if they find the plaintiff to be guilty of contributory negligence, and thereby leave a balance due to the plaintiff.
Solomon v. Continental Baking Co., 160 So. 732; Watson v. Holiman, 153 So. 669; Davis v. Waynesboro Hdw. Co., 151 Miss. 532, 118 So. 541; Birmingham Baptist Hospital v. Branton, 118 So. 741.
In our jurisprudence, the court does not take judicial notice of municipal ordinances, therefore, it is necessary to plead and prove them where their provisions are necessary in a judicial proceeding.
Naul v. State, 70 Miss. 699, 12 So. 903.
The violation of the provisions of a municipal traffic ordinance by a motorist using the streets of the municipality is negligence per se.
3-4 Huddy's Cyc. Auto. Law, page 62, sec. 32; Ala. Lbr. Bldg. Material Assn. v. Mason, 160 So. 232.
And, where such negligence is the sole proximate cause of an injury complained of by a plaintiff in a tort action to recover damages for such injury, it is a complete defense to the action.
Lucedale Auto Co. v. Daughdrill, 154 Miss. 707, 123 So. 871; White v. Weitz, 169 Miss. 102, 152 So. 484; Crow v. Burgin, 38 So. 625.
The burden of proving that the collision was the direct and proximate result of the negligence of the appellee Cody in the operation of the truck rested upon the plaintiff.
A. V.R.R. Co. v. Groome, 97 Miss. 201, 52 So. 703; Magers v. O.H. C.C.R.R. Co., 165 So. 416; Solomon v. Continental Baking Co., 160 So. 732.
The eighth specification of error assigned by the appellant relates to the action of the court in granting to the appellees the instruction as follows: "The court instructs the jury for the defendants that if you believe from the evidence Dr. A.C. Hewes, a practicing physician in Gulfport, treated the plaintiff for the personal injuries he alleges he sustained, and that he is accessible to the plaintiff as a witness in this case, the fact the plaintiff did not introduce him as a witness may create a presumption that, if he were introduced as a witness, his testimony would be unfavorable to the plaintiff."
It was the contention of the appellees that the appellant sustained no personal injury as a proximate result of the collision of the two automobiles, and there is some evidence in the record to sustain that view, even though Dr. A.C. Hewes, the physician who ministered to the appellant, was not introduced by the appellant as a witness in his behalf. This witness was not available to the appellees because of the provisions of section 1536, Code of 1930.
In the case of Beard v. Williams, 172 Miss. 880, 161 So. 750, the court held: "While a person being treated by a physician is not under any legal duty to call the physician to testify as to the extent of her injuries, and the opposing parties cannot avail themselves of the use of such physician as a witness, because of the privilege statute, we think there may be indulged, as an inference of fact, that, where no physician is called, and many are available, and the extent of the injury would depend largely upon the expert testimony of a physician, the presumption that the injured party would have called some physician had the injuries been serious. The fact that the party lived where there were many physicians, and claimed to have suffered injury, and still called no physician, nor had any treatment save as above stated, would raise the presumption that such testimony, if produced, would be against the claim of such party. In the case of Kress Co. v. Sharp, 156 Miss. 693, at page 710, 126 So. 650, 655, 68 A.L.R. 167, there is contained the following statement: `There is another vital rule: "The object of a judicial trial is to enable the state to establish and enforce justice between party and party," and "when a party appeals to the sovereign for justice he impliedly consents to the doing of justice to the other party, and impliedly agrees in advance to make any disclosure which is necessary to be made in order that justice may be done" — the latter, of course, not including any privileged matter.'"
Miss. Cent. R.R. Co. v. Robinson, 106 Miss. 896, 64 So. 838; Keeton v. State, 167 So. 68.
Appellant brought this action in the circuit court of Harrison county against appellees to recover damages for a personal injury received by him as the result of a collision between his automobile driven by him and a truck driven by appellee Cody in the pursuance of his duty as a servant of appellee Haydel, and alleged to have been caused through the negligence of Cody. The trial resulted in a verdict and judgment in favor of appellees, and from that judgment appellant prosecutes this appeal.
The collision occurred on Tenth street in the city of Gulfport. The streets in Gulfport run east and west and are numbered from south to north, while the avenues run north and south and are numbered from east to west. Appellant's home is in the middle of the block on the north side of Tenth street between Thirty Sixth and Thirty Seventh avenues. About twelve o'clock noon appellant left his place of business in the city to go to his home for lunch. He made the trip in his automobile and drove west on Tenth street, stopping his car, facing west, in front of his residence. After lunch he came out to go back to his business. It was more convenient for him to turn around and go back east to Thirty Sixth avenue than to go west to Thirty Seventh avenue; he undertook to make the turn, and while about the middle of the street his car was struck by the truck driven by appellee Cody, going west, resulting in his injury and damage to his car.
Appellant testified that before making the turn he looked in his rear view mirror and saw appellee Cody approaching in the truck, and that, if the truck had been going at a reasonable rate of speed, he had ample time to make the turn and face east; but that it turned out that the truck was going at a high rate of speed, from forty-five to fifty miles an hour. Appellee Cody testified that he was traveling about twenty-five miles an hour; that he did not see appellant in his automobile; that suddenly, without giving any signal with his hand or his horn, appellant lunged his car into the middle of the street in an effort to turn completely around; and that, being thus suddenly confronted by the danger, he made every effort at his command to avoid the collision, but was unable to do so.
The case largely depends on the proper construction of the traffic ordinances of the city of Gulfport and section 5569 in connection with section 5588 of the motor vehicle chapter of the Code of 1930. The ordinance provisions involved are as follows: One section defines what part of the city shall be treated as the "business district." Tenth street is not included in the business district. Another section fixes the maximum speed limit in the business district at twenty miles per hour and not more than ten miles in turning corners or passing street crossings, and not more than thirty miles per hour on any street. Another section prohibits the turning of motor vehicles so as to change their course except at street intersections. Another section requires that in slowing down, or suddenly stopping, or turning a motor vehicle, a signal shall be given by extending the hand and sounding the horn, and that a similar signal shall be given in pulling out from the curb of the street so as to notify drivers of cars approaching from behind. The speed limit, therefore, in the city, outside of the business district, is thirty miles an hour.
The evidence for appellant tended to show that Tenth street, although not in the business district, is closely built up with residences, and invoked the application of section 5569, Code of 1930, which follows:
"No person shall operate a motor vehicle on a public highway, or street, avenue or alley of any city, town or village in this state at a greater rate of speed than is reasonable and proper, having due regard to the traffic and use of the highway; or so as to endanger the life or limb of any person or the safety of any property; or in any event on any public highway where the territory contiguous thereto is closely built up, at a greater rate of speed than twenty miles per hour, or elsewhere in any municipality at a greater rate of speed than twenty miles per hour, or elsewhere outside of any municipality at a greater rate of speed than forty miles per hour, but trucks shall not in any event operate at a greater rate of speed than thirty miles per hour. Provided, that the governing authorities in municipalities, may prescribe the traffic rules within the corporate limits of the municipality and regulate the speed and fix the speed limit at which motor vehicles may be operated within the corporate limits, or any part thereof, by an ordinance setting out the traffic rules and declaring what rate of speed shall be reasonable and proper, but the speed limit so fixed within the municipality shall not be greater than thirty nor less than ten miles per hour, provided that all municipalities shall place signs, at points where the main highways enter, showing the speed limit fixed for the municipality."
Section 5588 of the Code makes a violation of this statute negligence.
It will be observed that the statute fixes the maximum speed limit in municipalities where the territory contiguous to the streets is closely built up at twenty miles an hour, while the ordinance fixes the maximum limit at thirty miles an hour. Appellee Cody admitted he was traveling more than twenty miles an hour. The court refused instructions requested by appellant informing the jury that the maximum speed limit on Tenth street was twenty miles an hour and, if appellee Cody was driving faster, then he was guilty of negligence. These instructions were requested on the theory that the maximum speed limit fixed in section 5569 of the Code controlled instead of the ordinance. The trial court necessarily, and we think rightfully, held to the contrary. The proviso of section 5569 modifies what goes before, so far as municipalities are concerned; it expressly empowers municipalities to fix the speed limit within their boundaries, or any part thereof, by ordinance, "setting out the traffic rules and declaring what rate of speed shall be reasonable and proper, but the speed limit so fixed within the municipality shall not be greater than thirty nor less than ten miles per hour." Where a municipality takes no action, the statute, leaving out the proviso, controls; where it does act, under the proviso the ordinance controls. The result is that, although the maximum speed limit on a thickly built-up highway in the country is twenty miles an hour, in municipalities under the proviso of the statute it may be thirty miles an hour. There is a reason for the difference — there is no police protection in the country and there is in the municipalities. It follows from these views that the court committed no error in refusing appellant's instructions based on the theory of a maximum limit of twenty miles an hour.
The court refused an instruction for appellant that it was the duty of appellee Cody to operate the truck at a "safe rate of speed." There was no error in so doing. Safe rate of speed is not the requirement of the law; it is only "reasonably safe rate" that the law requires.
The refusal of appellant's instruction embodying the principle of contributory negligence was justified because the court gave appellant one instruction embodying that principle; that was all he was entitled to.
Appellant complains that the giving of certain instructions for appellees was error. We do not think the contention has sufficient foundation to require a discussion by the court, except as to one. The evidence showed that Dr. Hewes attended appellant after his injury. He was not introduced by appellant as a witness. Under the privileged communications statute, section 1536, Code of 1930, Dr. Hewes was not available as a witness for appellees; he was, of course, for appellant. The court instructed the jury for appellees that, if they believed from the evidence that Dr. Hewes treated appellant for the injury, and that he was accessible to appellant as a witness, the fact that appellant did not use him as such "may create a presumption that if he were introduced as a witness his testimony would be unfavorable to the plaintiff." Appellant argues that the giving of this instruction, in effect, abolished the protection of the privileged communications statute. We do not think so. Beard v. Williams, 172 Miss. 880, 161 So. 750. In this respect the physician stands like any other material witness who is available to and can be produced by only one of the parties. The rule is that the failure of a party to produce a witness, which he can do and his adversary cannot, who knows the facts, if any one does, raises the presumption that such facts do not exist. Anderson v. Cumberland Telephone Telegraph Co., 86 Miss. 341, 38 So. 786; Bunckley v. Jones, 79 Miss. 1, 29 So. 1000; Calhoun v. Burnett, 40 Miss. 599.
Affirmed.