Opinion
No. 36422.
April 14, 1947.
1. AUTOMOBILES.
Evidence supported finding that negligence of defendant's truck in entering upon through highway at time when motorcycle on which plaintiff was riding along through highway had approached so closely to intersection as to constitute an immediate hazard, was a proximate cause of injuries sustained by plaintiff when truck struck motorcycle, and that plaintiff was also guilty of some negligence, without regard to whether he was on emergency call and proceeding under conditions prescribed by statute, which likewise contributed to the accident as the proximate cause thereof (Code 1942, secs. 8197, 8199).
2. NEGLIGENCE.
Where jury found that negligence of driver of defendant's truck was a proximate cause of motorcyclist's injuries when struck by truck, and that motorcyclist was also guilty of negligence which likewise contributed to the accident as a proximate cause thereof, jury was authorized to mitigate the damages in proportion to extent it might have believed from evidence that motorcyclist's negligence had contributed thereto.
APPEAL from the circuit court of Sunflower county. HON. S.F. DAVIS, Judge.
Everett Sanders, of Indianola, for appellant.
The evidence does not support the verdict of the jury, and since the testimony of the appellee and the physical facts conclusively show that appellee's own negligence was the sole cause of the accidents, a peremptory instruction for appellant should have been given.
Jones v. Carter, 192 Miss. 603, 7 So.2d 519, 195 Miss. 182, 13 So.2d 623; Coca Cola Bottling Works of Greenwood v. Hand, 186 Miss. 893, 191 So. 674; Whatley v. Boolas, 180 Miss. 372, 177 So. 1; Gough v. Harrington et ux., 163 Miss. 393, 141 So. 280; Myers v. Tims, 161 Miss. 872, 138 So. 578; Hemphill v. Mississippi Power Co., 84 F.2d 971; Code of 1942, Secs. 8138, 8195, 8197.
It is not reasonable to require a motorist to relinquish rights to which he would ordinarily be entitled under the rules of the road unless he is given notice that an emergency and privileged vehicle is approaching and that it is disregarding traffic laws.
Code of 1942, Secs. 8180, 8199; 5 Am. Jur. 294.
Barnett, Barnett, Jones Stone, of Jackson, and B.B. Allen and J.M. Forman, both of Indianola, for appellee.
Appellant's servant knew or should have known plaintiff was on an emergency mission.
Graves v. Johnson, 179 Miss. 465, 176 So. 256; Favaza v. New Orleans Public Service, Inc. (La.), 154 So. 457, 460.
Appellant's servant was guilty of negligence in driving his truck into Highway 49-W after he saw or should have seen plaintiff's approach.
Gulf Refining Co. v. Brown, 196 Miss. 131, 16 So.2d 765, 769; Avent v. Tucker, 188 Miss. 207, 194 So. 596, 601; Coca Cola Bottling Works of Greenwood v. Hand, 186 Miss. 893, 191 So. 674; Gough v. Harrington, 163 Miss. 393, 141 So. 280, 282; Jones v. Carter, 192 Miss. 603, 7 So.2d 519; Myers v. Tims, 161 Miss. 872, 138 So. 578; Trewolla v. Garrett, 200 Miss. 563, 27 So.2d 887; Whatley v. Boolas, 180 Miss. 372, 177 So. 1; Brown v. Clarcy, 43 A.2d 296, 298; Wilkinson v. Marcellus, 51 Cal.App.2d 630, 125 P.2d 584, 585; Code of 1942, Secs. 8138, 8197; 43 Words Phrases (Perm. Ed.), p. 20 of supplement.
Argued orally by F.E. Everett and J. Stonny Sanders, for appellant, and by Ross R. Barnett and John E. Stone, for appellee.
A judgment for damages, in the sum of $7,500, on account of personal injuries sustained by appellee, E.C. Harrington, was rendered in the trial court against the appellant, Mrs. M.L. Baird, whose servant and employee entered upon a through paved highway, while driving a truck about the business of his employer on a plantation, and at a time when a motorcycle on which appellee was riding along the through highway had approached "so closely on said through highway [to the intersection] as to constitute an immediate hazard," as prohibited by Chapter 200, Laws of 1938, Section 8197, Code of 1942.
The plaintiff was the only eyewitness who testified to the facts and circumstances in connection with the accident, and in our opinion the jury was warranted in finding from his testimony that he was guilty of some negligence, without regard to whether he was on an emergency call and proceeding under the conditions prescribed by Section 8199, Code of 1942, and also that the negligence of the driver of the truck likewise contributed to the accident as a proximate cause thereof. The jury was authorized by an instruction to mitigate the damages in proportion to the extent it may have believed from the evidence the negligence of the plaintiff had contributed thereto, and we think it is clear that the jury followed this instruction in arriving at the amount of the judgment appealed from, because if the jury had not found the plaintiff also guilty of negligence a verdict in a much larger amount would have been justified, since the expense of his hospital bills, medical fees, etc., alone amounted to approximately $4,000.
We have carefully considered our former decisions, rendered both before and after the passage of the statute here involved, defining and limiting the rights of a motorist on a right-of-way thoroughfare, in the light of all the testimony, the details of which it is unnecessary to here relate, and have reached the conclusion that the judgment of the trial court should be affirmed; that the case is controlled by what is said in the first paragraph of this opinion in the light of all the facts; and that the instructions, when considered as a whole, fairly state the law of the case.
Affirmed.