Opinion
No. 43578.
June 14, 1965.
1. Motor vehicles — collision — oncoming automobiles — icy, snowy hill — negligence — jury question.
Evidence raised jury question as to whether defendant, whose automobile collided near crest of icy, snowy hill with plaintiff's oncoming automobile, was negligent in respect to failing to maintain a proper lookout, failing to keep his automobile under free and easy control, and driving his automobile on left side of highway in violation of statute. Sec. 8182, Code 1942.
2. Trial — directed verdict — motion for — what is taken as true — what, not to be considered.
When considering motion for directed verdict, all evidence in favor of party against whom the motion is made must be considered as true and the evidence in contradiction thereof cannot be considered.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Hinds County; RUSSELL D. MOORE, J.
Julian P. Alexander, Jr., Jackson, for appellant.
I. Under our prevailing rule, no case should be taken from the jury where any of the evidence raises a question of liability, and peremptory instruction for appellee was improper. Bankston v. Dumont, 205 Miss. 272, 38 So.2d 721; Farish v. Canton Flying Service, 214 Miss. 370, 58 So.2d 915; Maguire v. Carmichael, 240 Miss. 732, 128 So.2d 581.
II. This case was one requiring jury consideration.
A. A review of all the facts and circumstances provide ample evidence from which the jury might determine negligence on the part of appellee.
B. Appellee failed to maintain a safe lookout and failed to keep his car under proper speed and control as required by Section 8176(b), of the 1942 Mississippi Code. He knew of the condition of the highway and from all of the facts and circumstances should have been driving at such a speed, in such manner, as to have avoided skidding. Appellee was on the wrong side of the highway, in violation of Section 8182 of the 1942 Mississippi Code. Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 141 So.2d 226; Meeks v. McBeath, 231 Miss. 504, 95 So.2d 791; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Webb v. Smith, 176 Va. 235, 10 S.E.2d 503, 131 A.L.R. 58; Wise v. Lodge, 247 N.C. 250, 100 S.E.2d 677; Secs. 8176(b), 8182, Code 1942.
III. Appellee cannot rely upon skidding as a defense, since the skid was the result of his own negligence. Sigmon v. Mundy (W. Va.), 25 S.E.2d 636; 1 Blashfield, Cyclopedia of Automobile Law and Practice, Part 2, Sec. 749.
IV. Appellee, in effect, has relied upon doctrine of "sudden emergency" or "unavoidable accident", which cannot be invoked where his own negligence created the situation. Edwards v. Murphree, 249 Miss. 78, 160 So.2d 689; Jones v. Dixie Greyhound Lines, 211 Miss. 34, 50 So.2d 902; Kettle v. Musser's Potato Chips, 249 Miss. 212, 162 So.2d 243; Ladner v. Merchants Bank Trust Co., 251 Miss. 804, 171 So.2d 503; Parkins v. Brown, 241 F.2d 367. Lipscomb Barksdale, Jackson, for appellee.
I. Appellee was not guilty of negligence as a matter of law. New Orleans Northeastern R. Co. v. Thornton, 247 Miss. 616, 156 So.2d 598.
II. This is an unavoidable accident, and no liability attaches. Booth v. Teche Lines, 165 Miss. 343, 143 So. 418.
III. The speed of appellee's automobile was not negligence as a matter of law, nor was it proved to be negligence. Adamian v. Messerlian, 292 Mass. 275, 198 N.E. 166; Bradley v. Thomas M. Madden Co., 333 Ill. App. 153, 76 N.E.2d 797; Gooch v. Shapiro, 8 N.Y.2d 1088, 170 N.E.2d 830; Herman v. Sladofsky, 301 Mass. 534, 17 N.E.2d 879; Master v. Goldstein Fruit Produce, 344 Pa. 1, 23 A.2d 443; Risen v. Consolidated Coach Corp., 274 Ky. 342, 118 S.W.2d 712; Weiner v. Hass, 276 N.Y. 661, 13 N.E.2d 51; Zeinemann v. Gasser, 251 Wis. 238, 29 N.W.2d 49.
IV. Appellant's own act was the cause of her injury. Blizzard v. Fitzsimmons, 193 Miss. 484, 10 So.2d 343; Bridges v. Crapps, 214 Miss. 126, 58 So.2d 364; Louisville Trust Co. v. Morgan, 180 Ky. 609, 203 S.W. 555; C.J. Pack Oil Co. v. Diamond, 204 F.2d 179; Rawlings v. Inglebritzen, 211 Miss. 760, 52 So.2d 630; Zanetti Bus Lines v. Hurd, 350 F.2d 123; 65 C.J.S., Negligence, Secs. 110, 111(b), pp. 679, 692.
Mrs. Lavada Kight, plaintiff below and appellant here, sued Robert Murdock, defendant below and appellee here, to recover damages for personal injuries sustained in an automobile collision. At the conclusion of the plaintiff's case the trial court sustained a motion for a directed verdict and entered judgment in favor of the defendant. Plaintiff appealed.
The parties are herein designated as plaintiff and defendant as they were in the trial court. Plaintiff alleged that defendant drove his automobile on his left or wrong side of the highway so as to collide with plaintiff, who was traveling in the opposite direction. The specific acts of negligence charged included (1) failing to maintain a proper lookout; (2) failing to keep his vehicle under free and easy control; and (3) driving his vehicle on the left side of the highway in violation of Mississippi Code Annotated section 8182 (1956).
Plaintiff testified that on January 1, 1964, the date of the collision, the roads were partly covered with ice and snow. She proceeded up a hill which turned slightly to the right near the crest thereof and she saw the defendant's station wagon come into view. At some distance before the two vehicles met, the station wagon went into a slide and came over onto plaintiff's righthand side of the road and struck the plaintiff's automobile, causing her to be injured.
She testified that when she saw the car sliding toward her, she squared the wheel and put both feet on the floorboard because that was all she could do. Her car never left her right or proper lane of the highway. The highway slanted somewhat downward toward the south or plaintiff's lane at that point. There was a large shaded area from some trees on the south side of the highway and ice was on the highway in the shady areas. She testified that she was traveling no faster than 25 or 30 miles an hour and the defendant's station wagon was going approximately 20 or 25 miles per hour when it began to slide across to its left lane of traffic. Before the collision plaintiff had taken her foot off the accelerator and the car was rolling. There was a deep embankment to her right and she was afraid to either put on the brakes or turn to the right onto the shoulder of the road because she might go off the embankment.
The defendant Murdock, called as an adverse witness, testified that he spent the night in Meridian because he was snow-bound, and the next morning, after obtaining information from the Mississippi Highway Patrol, he proceeded west on Highway 80 and drove to the place where the accident occurred; that the scenery along the highway was snow-covered and there was snow on the shoulders of the road. There were some icy places on the road which he had encountered from time to time in driving from Meridian to the place where the accident occurred. He stated that he saw the traffic stopped on his side of the road before he reached the crest of the hill. Prior to skidding into the plaintiff's car he applied his brakes before he got on the ice. He slid over onto the left side of the road, and as he slid, he passed cars that were parked because of a gravel truck at the bottom of the hill throwing sand and gravel on the icy places. These cars were stopped in his lane of traffic. He testified that when he was at the top of the hill, or as he approached the hill, he was going about 30 miles an hour. He had slowed to 20 or 25 miles per hour when he applied his brakes. When he put on his brakes, his car slid head-on into the plaintiff's automobile. The road was higher on his lane of traffic than it was on the left-hand lane. When he came into actual contact with plaintiff's car, he estimated his speed at 15 miles an hour.
Plaintiff also introduced photographs and estimates of the distances from the crest of the hill to the place where the accident occurred.
(Hn 1) We hold that the evidence presented a jury question whether defendant's negligence was the proximate cause of the collision and injuries to plaintiff. (Hn 2) It is the settled rule that when considering a motion for a directed verdict, all evidence in favor of the party against whom the motion is made must be considered as true and the evidence in contradiction thereof cannot be considered. When the evidence in this case is viewed in this light and all permissible inferences are considered, the motion for a directed verdict should have been overruled. It was a question for the jury whether defendant was negligent in the several respects mentioned hereinabove.
Reversed and remanded.
Ethridge, P.J., and Brady, Patterson and Inzer, JJ., concur.