Opinion
No. 41915.
June 12, 1961.
1. Motor vehicles — negligence — last clear chance doctrine — collision — motorist driving on wrong side of highway and oncoming bus.
Evidence sustained finding that bus driver was not negligent with respect to failing to sound horn, to stopping or slowing down in regard to accident which occurred when deceased motorist operated his vehicle at about 60 miles an hour on wrong side of highway and collided with bus.
Headnote as approved by Jones, J.
APPEAL from the Circuit Court of Adams County; James C. Torrey, J.
Berger, Callon Zuccaro, Johnson Johnson, Gwin Kuehnle, Natchez, for appellants.
I. The trial court erred in overruling appellants' motion for a new trial on the ground that the jury's verdict was contrary to the overwhelming weight of the evidence. Aycock v. Barnett, 157 Miss. 510, 128 So. 100; Austin v. Hemperly (Mo.), 228 S.W.2d 712; Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Blaylock v. Ware (Ga.), 59 S.E.2d 274; C.J. Peck Oil Co. v. Diamond, 204 F.2d 179; DeGraw v. Kansas City Leavenworth Transp. Co. (Kan.), 228 P.2d 527; Fahringer v. Trembath (Pa.), 38 Luzerne Leg. Reg. R226; Geitner v. Stephenson (Wash.), 242 P. 1099; Goldsby v. Lowrey, 6 La. App. 450; Lijewski v. Wrzesinski (Mich.), 43 N.W.2d 88; Mooney v. Chapdelain (N.H.), 11 A.2d 713; Ripley v. Wilson, 140 Miss. 845, 105 So. 476; Woloszynowski v. New York Cent. R. Co., 245 N.Y. 206, 172 N.E. 471.
Butler, Snow, O'Mara, Stevens Cannada, Jackson; Dent, Ward, Martin Terry, Vicksburg; Brandon, Brandon, Hornsby Handy, Natchez, for appellee.
I. The verdict of the jury was not contrary to the overwhelming weight of the evidence. Cox v. Tucker, 133 Miss. 378, 97 So. 721; Davis v. Temple, 129 Miss. 6, 91 So. 689; Deitz v. The Greyhound Corp., 234 F.2d 327; Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; Garland v. Stewart, 31 Miss. 314; Gibson v. A.P. Lindsey Distributor, Inc., 233 Miss. 853, 103 So.2d 345; Illinois Cent. R. Co. v. Harrison, 224 Miss. 331, 80 So.2d 23; Illinois Cent. R. Co. v. Underwood, 235 F.2d 868; Jackson City Lines v. Harkins, 204 Miss. 707, 38 So.2d 102; Lynch v. American Slicing Machine Co., 202 Miss. 515, 32 So.2d 546; Mobile O.R. Co. v. Cox, 153 Miss. 597, 121 So. 292; Mulberg v. Mason Dixon Lines, Inc., 157 F.2d 805; Paine v. Dimijian, 201 Miss. 522, 29 So.2d 326; Ripley v. Wilson, 140 Miss. 845, 105 So. 476; Shelton v. Underwood, 174 Miss. 169, 163 So. 828; Teche Lines, Inc. v. Bounds, 182 Miss. 638, 179 So. 747; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 178 Miss. 143, 164 So. 3, 172 So. 757; Wood v. Gibbs, 35 Miss. 559; 5A C.J.S., Sec. 1647 et seq. p. 317 et seq.
The jury found that appellees were guilty of no negligence which proximately caused or contributed to the death of Charles Robert Montgomery, the husband and father of appellants.
He died as the result of a collision between a chartered bus and the automobile driven by him on Highway 61 between Port Gibson and Vicksburg about 4:45 P.M. on January 16, 1959. Appellants' claim was based on the last clear chance doctrine. The bus was travelling north; the decedent, south. The highway runs generally north and south but at the point of the collision there was a slight curve which would be to the right of one coming from the north.
It is conceded that the collision occurred in the east traffic lane, which was the proper lane for the bus. It is contended, however, that the bus driver saw, or should have seen, the decedent driving in the wrong lane and that he could or should have been able to avert the accident.
It is conceded that the collision occurred a short distance north of a concrete bridge; that there were guards on each side of the road, and considerable drops on each side of the road. The bus driver testified that he saw the decedent some distance ahead and then saw him as his left front wheel came upon the center line and then crossed it; that he, the driver, put his foot on the brake; that he expected the driver of the oncoming car to turn back into his lane; that it was not unusual to see approaching cars do this; that when it finally became evident that he would not get back into the right hand lane, he, the driver, immediately applied his brakes with full force, but the two vehicles collided, knocking the driver of the bus out of his seat and the bus then ran across the highway in a northwesterly direction upon a bank. The decedent's car was turned completely around; the decedent was thrown out and died shortly thereafter. The driver testified that it happened so quickly he did all he could do, although he admitted he did not blow his horn. He stated that when he was applying the brakes in an emergency, in order to control the bus, it was essential to have both hands on the wheel. All the evidence indicated that the decedent was driving approximately 60 miles an hour prior to and at the time of the accident.
Mr. Claude Porter, a witness for appellants, was on the front seat of the bus. He was one of the coaches with the basketball teams which were travelling on the chartered bus to Vicksburg. He put the speed of the bus at about 55 miles per hour. He saw the car on the wrong side of the road; saw it get completely over on the bus's side; saw nothing to prevent the car from turning back to the right; his estimate of the decedent's speed was 60 miles per hour or more; said he noticed when the car first came in sight the driver of the bus touched the brakes to slow down slightly, but that he, Porter, was so excited he could not say whether the brakes of the bus were later applied in emergency.
Mr. James E. Storment, at the time of the accident, was travelling in his car about 400 to 500 feet behind the car of the decedent. This witness saw the accident and was disinterested. He corroborated the driver of the bus with reference to the decedent's car crossing into the east lane and stated that when the right wheels of the decedent's car crossed the center line the car was approximately 100 feet from the point of impact, and that the front end of the bus "seemed to set down just before the point of impact." Of course, it is readily seen that all of this occurred in a matter of seconds.
(Hn 1) Appellants raise no question as to the admission of any evidence, nor as to any instructions. The sole question presented is the weight of the evidence, appellants contending that the verdict of the jury was contrary to the overwhelming weight thereof. The various issues were submitted to the jury on proper instructions. The question as to whether the driver was negligent in failing to sound the horn, the question as to the stopping or slowing down, the question of an emergency, and the question of negligence generally on the part of the driver, were all submitted to the jury under proper instructions. The case was well tried, the instructions were ample, and the jury decided that the appellees were guilty of no negligence. The lower court overruled a motion for a new trial on the same ground as here presented. We think the jury had ample evidence to support its verdict and the case is therefore necessarily affirmed.
Affirmed.
Lee, P.J., and Kyle, Ethridge and Rodgers, JJ., concur.