Opinion
No. 37601.
October 23, 1950.
1. Negligence — motor vehicles — violation rules of the road.
When a motorist ahead intends to turn across the left lane, he must in due time give the statutory signal of his said intention, and where the proof is undisputed that he suddenly turned across the left lane without any signal or warning that he intended to do so, a peremptory instruction against him should be given on the issue of liability in an action for damages for the collision which resulted as a proximate consequence of the stated negligence.
2. Damages — motor vehicles — loss of use.
The owner of a motor vehicle damaged in a collision through the negligence of the defendant is entitled to recover not only the actual damage to the vehicle, but also such reasonable damages as he suffered from the loss of its use for such reasonable time as would have been required to repair it under normal conditions, but not including the further unusual time required because of the unavailability of parts for a model approximately fifteen years old.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Yalobusha County; JOHN M. KUYKENDALL, Judge.
Kermit R. Cofer, for appellant.
Under the statutes and the recent case of Wilbourn v. Gordon, 45 So.2d 844, the admitted failure of defendant, Lambert, to give any kind of signal for a reasonable distance, of his intention to turn left, constituted negligence on his part.
This negligence on his part placed plaintiff in such situation that he could not avoid colliding with the defendant's car according to the undisputed proof. The uncontradicted testimony shows that, had plaintiff continued on the left side of the road, he would have definitely hit defendant's car and that he undertook to cut to the right as the only course left open to him to try to avoid the collision, but that by that action he could not relieve the situation. Thus, it is apparent from all of the undisputed testimony in the case that defendant was negligent and that his negligence was the proximate cause of the collision.
There is no inference at all from the testimony that plaintiff was in any wise negligent in the collision. He was traveling southward at a reasonable rate of speed. There was no other automobile on the road except defendant's car, going either way. He sounded his horn at reasonable distances back of the defendant's car. His lights were good. His brakes were good, and what took place in the road took place with such suddenness and absence of any alarm, that his colliding with the defendant's automobile was inevitable. It is, therefore, submitted to the Court that there was nothing on the issue of liability to be submitted to the jury and the court should have peremptorily instructed it to find for the plaintiff on the issue of liability.
On the question of granting peremptory instruction, the Supreme Court of Mississippi said in Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8, quoting from Southern Railroad Company v. Floyd, 99 Miss. 519, 55 So. 287: "`What amounts to negligence, as we have already seen, is a question of law. It is for the Court to say, in a majority of instances what is, and what is not, negligence as an abstract proposition. When, therefore, the facts of a given case are undisputed, and the inferences, or conclusion to be drawn from the facts, indisputable, when the standard of duty is fixed and defined, so that a failure to attain it is negligence beyond cavil, then contributory negligence is a matter of law.'" See also Illinois Central Railroad Company, et al. v. Archer, 113 Miss. 158, 74 So. 135; Gano v. Delmas, 140 Miss. 323, 105 So. 536; West et al. v. Aetna Insurance Company of Hartford, Connecticut, 45 So.2d 585; Westerfield v. Shell Petroleum Corporation, et al., 161 Miss. 833, 138 So. 561.
It is respectfully submitted that there was no question of fact for the jury's decision. There was no conflict anywhere in the evidence, nor was there any inference to be drawn from anybody's testimony other than that defendant was guilty of gross negligence which proximately caused the accident and the damage. The court should have instructed the jury to find and return a verdict for plaintiff, and its failure so to instruct peremptorily constitutes reversible error.
Stone Stone, for appellee.
The plaintiff Parsons overtook the defendant Lambert while the former was traveling in a 1931 Model-A Ford automobile southward from his home at Water Valley at about 9:30 p.m. en route to his place of work at Grenada as a railroad machinist. He undertook to pass the automobile of the defendant after having blown his car horn when about 200 feet from the rear, again when about 150 feet and again when about 50 feet, and at a time when the defendant was driving slower than plaintiff and whereupon the defendant decided to cross the left lane of the highway for the purpose of turning around at a field road and returning to Coffeeville. In doing so the defendant thereby suddenly blocked the left lane of the highway which the plaintiff was undertaking to use in passing, when a collision occurred and resulted in damage to the plaintiff's car to the extent of about $400, according to the testimony of a mechanic.
The plaintiff sought by his suit to recover the sum of $300 as damages to his car and the sum of $250 for the loss of the use of his car in going to and from his work for a period of 125 days while it was undergoing repairs. There was a verdict in favor of the defendant. (Hn 1) However, the plaintiff was entitled to a directed verdict in his favor as requested by him on the question of liability, for the reason that the proof is undisputed that the defendant gave no signal or other warning whatsoever of his intention to suddenly turn into the left lane for the purpose of turning around at the field road, at a time when the plaintiff was overtaking and undertaking to pass him on the left as aforesaid.
The plaintiff's request for the peremptory instruction in his favor having been refused, the cause must be reversed, a judgment rendered here in favor of the appellant on the issue of liability, and remanded for the assessment of damages. (Hn 2) On that issue the plaintiff would be entitled to recover the actual damages to his automobile and such reasonable damages as he may have sustained in the loss of the use of his automobile for such time as would have been required for its repair under normal conditions. The delay of 125 days in getting the car repaired for use was occasioned because of the unavailability of parts at that time for a 1931 model automobile. The defendant was in no manner responsible for such a condition and would be liable only for the loss of the use of the car for such reasonable time as would have been required within which to repair it under normal conditions. See 25 C.J.S., Damages, Sections 40-42, pp. 514-516; Lyle v. Seller, 70 Cal.App. 300, 233 P. 345; 25 C.J.S., Damages, Section 48, pp. 529-530, and particularly subsection (b) at page 530 of the said text.
Reversed, judgment here for appellant on liability, and remanded for assessment of damages only.