Summary
In Myers v. Timms, 161 Miss. 872, 138 So. 578, 579, our court set forth the Mississippi rule as follows: "... When a vehicle traveling on a right of way street arrives at the intersection of a cross street at approximately the same time that a vehicle on the cross street arrives at the point of intersection then the vehicle on the right of way street has the privilege to proceed and this is the extent of the rule..."
Summary of this case from Jackson City Lines v. HarkinsOpinion
No. 29615.
January 4, 1932.
1. EVIDENCE.
Practices respecting use of automobiles are within that universal knowledge of which courts may take judicial notice.
2. AUTOMOBILES.
Motorist on right of way street under ordinances has no right of way at intersection, unless he arrives at approximately same time as vehicle on cross street.
APPEAL from circuit court of Harrison county; HON.W.A. WHITE, Judge.
Lester E. Wills, of Hattiesburg, for appellant.
The operator of an automobile is not an insurer against injury to persons or property, but that his duty is merely to exercise reasonable and ordinary care.
House v. Cramer, 134 Iowa, 374 at 376, 112 N.W. 3, 10 L.R.A. (N.S.) 655, 13 Ann. Cas. 461.
The degree of care and caution which is required is that which an ordinarily prudent person would exercise under similar circumstances.
Massie v. Barker, 224 Mass. 420 at 423, 113 N.E. 199.
The basic rule is, as it has always been, that liability is predicated upon the fact that the injury complained of was due to the negligence of the defendant or of some person for whose negligence the defendant is responsible.
Hattiesburg Chero Cola Bottling Co. v. Price, 141 Miss. 892, 106 So. 771.
In an action to recover damages for injuries sustained as the result of the operation of a motor vehicle, it is essential that the plaintiff prove by a preponderance of the evidence that the person sought to be charged was negligent.
Farrar v. Whipple, 65 Cal.App. 123, 223 P. 80; Barabin v. Teche Transfer Co., 1 La. App. 197; Wilkinson v. Turnbull, 126 Minn. 29, 206 N.W. 950; Ackerman v. Fifth Ave. Coach Co., 127 App. Div. 508, 162 N.Y.S. 49; Hockster v. Rosenheim, 198 N.Y.S. 228; J.A. Bailey, Inc., v. Fellows, 180 N.Y.S. 399; Nordby v. Sorlie, 35 N.D. 395, 160 N.W. 70, L.R.A. 1917B, 753; Stidell v. Davidson (Wash.), 253 P. 458.
Any such person so operating, or causing to be operated a motor vehicle shall, at the intersection of public highways, streets, avenues or alleys of any city, town, or village, keep to the right of the intersection of the centers of the highways when turning to the right and to pass to the right of such intersections when turning to the left.
Section 5574, Code of 1930.
Where two cars are approaching in opposite directions and the driver of one intends to make a left turn into an intersecting street, it is his duty so to watch and time the movement of the other car as reasonably to insure himself of a safe passage either in front or rear of said car, and he must even stop and wait for the passage of the other if this is reasonably necessary to avoid danger. It is his duty not to make a left turn into or across the path of another vehicle which is approaching in the opposite direction and is so near at hand that such a turn makes a collision probable, and this duty exists irrespective of any question of right of way.
42 C.J., p. 997.
Under the regulations fixing right of way according to compass direction of travel or giving preference to travel on certain highways, a left turn of one vehicle at an intersection will obviously change its course from the favored to the disfavored direction or vice versa. If the turn changes its direction from the favored to the disfavored direction it is clear that the car which, proceeding on its course continues in the favored direction, has the right of way.
42 C.J., section 717, p. 991.
The questions of negligence and proximate cause are for the jury, yet when the evidence is unconflicting and conclusive that the appellee was negligent and that her negligence was the proximate cause of the injury there can be no cause to submit to the jury and a verdice rendered in favor of the appellee will be nullified.
Flowers v. Stringer, 120 So. 198, 152 Miss. 897; Frazier v. Hull, 127 So. 775, 157 Miss. 303; Whalen v. Dunbar, 115 A. 718; Hussa v. Kranich, 199 N.Y.S. 781; Boyles v. Plumb, 141 App. Div. 786, 126 N.Y.S. 425; Stidell v. Davidson, 253 P. 458.
It has been considered that regulations establishing right of way according to direction of travel apply only to the intersection, that is, up to the point where one vehicle enters the area which is common to the two highways, so that the vehicle first entering the intersection is entitled, even though it is traveling in the disfavored direction, to cross ahead of the other vehicles. Such a view is however, open to the criticism, at least with respect to regulations giving the right of way to vehicles approaching from the right, because it is obvious that the vehicle on the left actually entered the intersection of the highways before the other vehicle, and yet the position of the two vehicles may be such that the vehicle on the right will be closer to the point where the paths of the two vehicles cross, and because, in view of the speed at which automobiles travel, safety demands that the right of way be determined before either car has entered the intersection. Accordingly the better view is that the right to pass ahead should be determined according to proximity to the point where the paths of the two vehicles will cross if each continues on its way, and that unless the vehicle traveling in the disfavored direction is so much closer to that point that it is reasonably apparent that it may, with entire safety, reach and pass that point before the other vehicle reaches it, the vehicle approaching in the disfavored direction must yield.
42 Corpus Juris 990, section 710; Fox v. McCormick, 110 Kan. 91, 202 P. 614.
An automobilist who is himself observing the regulations for traffic on the highway has a right to the use of the highway which is superior to that of one who is violating traffic regulations and if he has no warnings of danger, he is not required to anticipate that some other user of the highway will unexpectedly violate the rules of the road or traffic regulations and thus create a situation of danger. It has also been held that the driver of a motor vehicle may rely upon observance of traffic ordinances by other vehicles which are not expressly included within the terms of such ordinances.
42 Corpus Juris 901, section 607.
Where two cars approach an intersection in opposite directions, the driver of each is entitled to assume that the other having given no signal of intention to turn, will proceed straight across the intersection, and will not, without reasonable warning, make a left turn and cross his path or strike his vehicle. He is not required to anticipate that the driver of the other car will cut the corner to his left, but may assume that if such driver intends to turn to the left he will make the turn in a proper manner.
42 Corpus Juris, p. 971, section 701.
John A. Sykes, of Gulfport, for appellee.
There is and was but one question in this case, and that was who caused this accident? This clear cut issue of fact was submitted to a jury of twelve men; and they, by their solemn verdict have said the fault lay with appellant.
If appellee occupied the intersection and would have gotten safely across but for the excessive and unlawful speed of the appellant, surely appellant was at fault and she is entitled to recover.
The facts in this case so completely demonstrate the fault of appellant in the collision that a peremptory instruction for appellee on the issue of liability might have been given, and, except for the occasion which this case furnishes for passing upon a question or right which seems to be much misunderstood at this time, we would affirm without an opinion.
Appellant and appellee were driving their automobiles in opposite directions on Thirteenth street in the city of Gulfport. This street is one hundred feet wide, and, under the ordinances of said city, is what is known as a right of way street. When appellee arrived at the intersection of Twenty-sixth avenue, and desiring to turn north into that avenue, she gave the proper signal, reduced her speed, and turned to the northward towards the north intersection of said avenue. At the time she started upon her turn to the northward, appellant was to the east a distance of two hundred twenty-five feet; but before appellee could negotiate the distance of some sixty or seventy feet to clear into Twenty-sixth avenue, appellant reached the course of her passage, and collided with her car at a point just about on the north line of said Thirteenth street where said Twenty-sixth avenue entered upon Thirteenth street. In other words, the collision was not entirely within Thirteenth street, but was on the north line thereof at the entrance or intersection of Twenty-sixth avenue; this odd situation having been brought about by the skidding of appellant's car when he suddenly put on brakes just before he reached the point where appellee was crossing ahead of him. It is clear from the evidence, or at least the inference is one which the jury could hardly fail to draw therefrom, and which apparently they did draw, that appellant, because he was on the right of way street, supposed he had the right, and proceeded to assert the privilege, whether right or wrong, to continue on his way without any slackening of speed until too late — he assumed that no vehicle should or would undertake to cross ahead of him when he was in sight, although he was two hundred twenty-five feet away when appellee started across.
This brings into review a great abuse, and infringement of right and good order, which has resulted from recent municipal ordinances giving what is commonly known as the right of way on certain designated streets. The automobile has today become of such general use and the practices in respect to that use, both rural and urban, are so generally observed, that these practices have now come within that general and universal knowledge of which courts may take judicial notice. We know, therefore, that these right of way streets have now become race courses, where those thereon as a rule have come to regard others who wish to cross as having no rights which those on the said so-called favored or right of way streets are required to respect or regard. If this were only a violation of good manners, or involved only a neglect of a polite regard for the requirements of others, it would be a matter with which courts would have nothing to do. But this claim and practice of racing upon right of way streets and this exclusion from the proper privilege of crossing said streets has developed into a constant violation of law and an infringement of legal right, touching which the courts are called upon to interfere.
It is beyond the power of any municipal council to grant in their so-called right of way ordinances any such privileges as are to-day being asserted by the average of the drivers along right-of-way streets. The only right that these ordinances give, or validly can give, is this: When a vehicle traveling on a right of way street arrives at the intersection of a cross street at approximately the same time that a vehicle on the cross street arrives at the point of intersection, then the vehicle on the right of way street has the privilege to proceed, and this is the extent of the rule. But the supposed right of those on the favored street to proceed at full speed so long as they have come within sight of the crossing, or of those there attempting to cross, is no valid right, and the assertion and exercise thereof is simply a violation of law, and the general practice in so violating the law makes it none the less than it is — a violation of the law — and those guilty must respond in damages, both actual and punitive, if in the discretion of the court and jury the case be such as to warrant damages of the latter kind. Most of the authorities, not entirely harmonious, but, in general, confirmatory of what we have above said, are to be found in 3-4 (9 Ed.) Huddy's Cyclopedia of Automobile Law, section 151 et seq.
Affirmed.