Opinion
No. 33880.
February 12, 1940. Suggestion of Error Overruled March 25, 1940.
CARRIERS.
A bus driver who, in response to his inquiries, had been informed by driver of another bus and by employee at bus station that there was no water over highway ahead of him was not negligent with respect to speed of 45 miles an hour at which he approached water across highway so as to render carrier liable for injuries sustained by passenger in accident when driver's vision became obscured by spray.
APPEAL from the circuit court of Jasper county; HON. EDGAR M. LANE, Judge.
O.M. Oates, of Bay Springs, and Stevens Stevens, of Jackson, for appellant.
There is no liability in this case and the motion to exclude the plaintiff's testimony should have been sustained, and in all events the peremptory instruction requested by the defendant should have been granted.
Automobile driver may assume that street is reasonably safe for driver, and is not required to use extraordinary care. Mayor of Vicksburg v. Harralson, 101 So. 713, 136 Miss. 872; McWhorter v. Draughn, 102 So. 567, 137 Miss. 515.
In Graves v. Johnson, 176 So. 256, 179 Miss. 465, headnote No. 3 reads: "A traveler on a completed highway actually or impliedly accepted by proper public authorities and put into unrestricted use as highway has right to assume that highway is reasonably safe for travel and free from obstructions, and need not keep his eyes constantly fixed on path of highway or look far ahead for defects which should not exist nor need he be absolutely required to exercise such extreme vigilance as to in all events see bumpers in road, or chain stretched across road, but traveler nevertheless must use ordinary care."
Matteson v. Teche-Greyhound Lines, 178 So. 272.
The question at issue is not the rights of the plaintiff as a passenger so much as it is negligence vel non of the defendant. Where railroad companies are involved, the fundamental question is one of negligence and if the injury complained of is due to natural causes or overwhelming force, or unprecedented storms or floods or other extreme weather conditions, which cannot be reasonably anticipated, then certainly there is no liability.
13 C.J.S., par. 697; Libby v. Maine Central R. Co., 20 L.R.A. 812.
Most of the decisions with reference to unusual or extraordinary floods pertain to railroad cases, in which is also involved the obligation of the carrier to construct and maintain the roadbed in a safe condition, but even in railway cases the carrier is not bound to provide against or foresee unusual or extraordinary floods such as the evidence reflects in the case at bar.
C. W. Ry. Co. v. Bridges (Ala.), 5 So. 864.
It is manifest that the bus was traveling at a reasonable rate of speed, otherwise it could not have been so promptly stopped. All of the testimony is to the effect that the bus stopped within a short distance; some of the witnesses put it in three lengths of the bus. The driver testifies that he did not apply his brakes violently, for to do so might cause the bus to skid, and that the proper rules of safety suggest the gradual application of the brakes. There is evidence that passengers felt the brakes applied, and all say that the bus driver acted in a commendable way. When the bus stopped, he was still in the midst of water and the passengers had either to wade out or be carried to automobiles and thence transported to Meridian. We respectfully submit that there is no liability in this cause, and the peremptory instruction should have been granted.
Homer Currie, of Raleigh, and H.L. Bayless, Jr., of Bay Springs, for appellee.
We respectfully submit that this court has repeatedly held that a person may be negligent and thus create liability when no law or no statute or ordinance would be violated.
Wheat v. Teche Lines, Inc., 179 So. 553, 181 Miss. 408.
The Laws of 1936, Chapter 309, fixes the maximum rate of speed at which all motor vehicles may travel upon the highway, with the exception of trucks, at 50 miles per hour. The accident which is the subject matter of this suit having occurred before the 1938 acts, affecting automobiles, became effective.
It is true that permission is given by the statute to operate motor vehicles other than trucks outside the cities at a rate of speed not to exceed fifty miles per hour; however, that part of the statute is subject to the limitation of the opening clause, or that is to say, the speed must always be limited to "what is reasonable and proper having due regard to the traffic and use of the highway" and must be such as not "to endanger the life or limb of any person or the safety of any property."
Snyder v. Cambell, 145 Miss. 287, 110 So. 678; Frazier v. Hull, 157 Miss. 330, 127 So. 775; Bateman v. Teche Lines, Inc., 162 Miss. 404, 139 So. 159.
We submit that under the facts shown with testimony showing that the bus driver was making from 40 to 50 miles per hour, that the physical facts corroborated a fast speed, that he was making a rapid rate of speed, that bus driver knew of the excessive rains, had warning that there was water over the road at one place admittedly, that driver knew the road and knew of the low swamps and places most likely to overflow, that driver, according to his testimony, had lights that were so good as to permit his vision 300 feet ahead. Yet and notwithstanding all of these apparent facts the driver himself testified that he did not see the water until he struck it with such speed that by its splash it engulfed the entire front part of the bus.
We submit that by analogy if a driver of an automobile who knew of the unfinished portion of the road that was under construction ran into a barricade was chargeable with negligence then why should not a driver of a bus carrying passengers for hire be chargeable with negligence for running into high water under the facts and circumstances herein shown? We submit that negligence was shown on the part of the appellee and the jury so found.
Argued orally by J. Morgan Stevens and O.M. Oates, for appellant, and by Homer Currie and H.L. Bayless, Jr., for appellee.
The appellant is a common carrier of passengers by bus or motor coach over public highways. The appellee recovered a judgment against it for injuries she claims to have sustained while a passenger on one of the appellant's buses because of the negligence of the driver thereof. At the close of the evidence, the appellant requested, but was refused, an instruction directing the jury to return a verdict for it.
The appellee was a passenger on one of the appellant's buses and was going from Chattanooga, Tennessee, to Laurel, Mississippi. The highway on which the bus was traveling was paved and was under supervision and control of the State Highway Commission. It traverses Lauderdale County, which it enters at the Alabama-Mississippi State line. About eighteen miles north of Meridian, the highway crosses Toomsuba Creek, spanned by a concrete bridge which the bus reached after nightfall. Rain had been falling for several days, and about one hundred feet after the bus crossed this bridge it entered water which there flooded the highway, the spray from which caused by the entry of the bus therein was so great that it completely cut off vision to the front. The driver immediately applied his brakes, cautiously, but because of his inability to see, the bus was deflected to the edge of the highway, rolled partly off it, and when it stopped was tilted forward at an angle of about forty-five degrees. As to these facts, there is no serious conflict in the evidence. The negligence alleged is that the driver of the bus approached this creek at too high rate of speed, and without having the bus under control. This creek had not overflowed its banks since the highway was constructed. The bus at the time of the accident was running about forty-five miles an hour. A few miles before arriving at this creek, the driver of the bus met and passed a bus of another carrier, and also a Teche Line bus, which had just a short time previously crossed this bridge. The driver of the Teche Line bus on being asked by the driver of the bus in which the appellee was riding as to whether there was any water over the highway ahead of him replied that there was not, except at Russell, which he had safely crossed and which appeared to be going down. There is nothing in the evidence to cast doubt on the truth of this reply. Russell is several miles beyond Toomsuba Creek in the direction this bus was traveling. The driver of the bus also asked a Teche Line employee at one of the bus stations several miles before be reached this bridge whether there was any water over the road ahead of him, who replied that his information from the company's Meridian office was that there was no water over the road except near Russell. The bus was equipped with headlights, which gave a view of the highway, through the rain and mist, of about 300 feet. As hereinbefore said, it was raining at the time, consequently, water appeared on the highway therefrom, and the overflow from this creek according to the evidence did not sufficiently change the appearance of the highway to attract attention thereto. It thus appears that the driver of this bus was not only not negligent in ascertaining whether water covered the highway at the point of the accident, but on the contrary exercised a high degree of care in attempting to ascertain whether any water was there. There is nothing in the evidence to cast doubt on the truth of the information given him a short time before he reached the place of the accident that the only water then over the highway was at Russell, and as he did not know, and was not negligent in not ascertaining, that water covered the highway, he was guilty of no negligence in relation to the speed of which he was driving.
The appellant's request for a directed verdict should have been granted.
Reversed and judgment here for the appellant.