Summary
In Teche Lines, Inc. v. Danforth, 195 Miss. 226, 12 So.2d 784 (1943), the Mississippi Supreme Court addressed the constitutionality of section 63-3-903's predecessor, Section 90 of Chapter 200, Laws of 1938. Speaking to the twenty-foot requirement provision, Danforth took judicial notice that at least eighty-five percent of Mississippi's highways at the time were of such a width that a motorist could stop only occasionally without violating the law.
Summary of this case from Meka v. Grant Plumbing & Air Conditioning Co.Opinion
No. 35252.
April 5, 1943.
1. AUTOMOBILES. Highways.
Statutes regulatory of highway traffic must have a practical or workable interpretation and not an arbitrary or unreasonable construction (Laws 1938, ch. 200, sec. 90).
2. EVIDENCE.
In construing statute providing that when vehicle is stopped on highway unobstructed width of at least 20 feet must be left for free passage of other vehicles, the court could take judicial notice of fact, known to everybody, that at least 85 percent of public highways of state were of such width that it would be only occasionally possible to stop a vehicle so as to leave as much as 20 feet of unobstructed highway to side of vehicle (Laws 1938, ch. 200, sec. 90).
3. AUTOMOBILES. Constitutional Law. Highways.
The right of a citizen to travel on public highway is a common right which he has under his right to enjoy "life, liberty, and pursuit of happiness," and the right to "travel," which means the right to go from one place to another, includes the right to start, to go forward on the way, and to stop when the traveler's destination has been reached, and also the right to stop on the way, temporarily, for a legitimate or necessary purpose when that purpose is an immediate incident to travel.
4. AUTOMOBILES. Highways.
The constitutional right of citizen to travel on public highways may be reasonably regulated by legislative acts in pursuance of police power of state, but the police power cannot justify the enactment of any statute which amounts to an arbitrary and unwarranted interference with or unreasonable restriction on those rights of citizens which are fundamental.
5. CONSTITUTIONAL LAW.
Where court is confronted with a statute, a literal construction of which would render it unconstitutional, the court must adopt such a construction, when reasonably possible, as will save the statute and at the same time save every savable provision or term in it.
6. CONSTITUTIONAL LAW.
To sustain constitutionality of section of statute providing that no person shall stop vehicle on main traveled part of highway when it is practical to stop vehicle off such part of highway, but in every event an unobstructed width of at least 20 feet of highway shall be left and a clear view of such stopped vehicle shall be available from a distance of 200 feet, the word "practical" could be given an operation throughout the entire section (Laws 1938, ch. 200, sec. 90(a)).
7. AUTOMOBILES. Highways.
Under statute providing that when vehicle is stopped on highway an unobstructed width of at least 20 feet shall be left and a clear view of stopped vehicle shall be available from distance of 200 feet, the vehicle must turn as far to the right as practical, but must not stop upon any part of traveled highway until at least 200 feet clear view is available in each direction, save when vehicle is disabled or when on account of obstructions or equivalent conditions ahead, it is impossible to proceed so as to leave the 200 feet of clear view (Laws 1938, ch. 200, sec. 90(a, b)).
8. AUTOMOBILES. Trial.
Where it was impossible to leave 20 feet clearance opposite bus which stopped to permit passenger to alight on shoulder, and overtaking motorist ran into rear of bus, whether there had been a compliance with applicable regulatory statute was for the jury, and an instruction that if less than 20 feet clearance was left by bus there was negligence was improper (Laws 1938, ch. 200, sec. 90(a)).
SMITH, C.J., and ANDERSON, J., dissenting.
APPEAL from circuit court of Jones county, HON. BURKITT COLLINS, Judge.
George W. Currie, of Hattiesburg, for appellant.
We submit that plaintiff's instruction appearing on page 30 of the record is erroneous. This instruction omits requiring the plaintiffs to prove their case by a preponderance of the testimony, but merely says, "if you believe from the testimony in the case, that the bus of the defendant was stopped upon the paved or improved or main traveled part of Highway 11, not in an emergency, at a place and time and in such a way as not to leave a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing bus or vehicle, then such stopping of said bus or vehicle at such time and place, and under such condition, if you believe it was so parked, was a violation of the law and negligence, and if you further believe from the testimony that such negligence, if any, proximately caused or contributed to the injury and death of the deceased, then the defendant is liable, and it is your duty to find and return a verdict for the plaintiffs." The instruction interpolates the phrase "not in an emergency," which the statute does not contain so far as we can ascertain, and we submit that if the statute is properly construed this phrase is highly prejudicial to the defendant and unwarranted by the statute. The law applicable appears to be Section 90, paragraphs (a) and (b), chapter 200, Laws of 1938. These sections are as follows:
"(a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of 200 feet in each direction upon such highway.
"(b) This section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position."
The statute, paragraph (b), includes in its application a vehicle disabled while on the paved or improved or main portion of the highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position. We submit that if the statute is a valid law, this paragraph applies to disabled vehicles no matter where they are on the highway, if they are so disabled as to be immobilized. We submit that paragraph (b) has no relevance to customary or ordinary travel on the highway; that it does not comprehend instances where occupants of motor vehicles pull as far as they reasonably can to the right of the road. We submit that the instruction is further fatally erroneous in omitting the qualification that there must have been a highway of such construction as would permit leaving a 20-foot clear space for usual and ordinary traffic where drivers of motor vehicles pull as far to the right of the paved or main traveled portion of the road as circumstances under the existing conditions permit.
Paragraph (b) of the statute, we submit, has no reference to any highway except one where it is "practical" to stop, park or leave a vehicle. The statute itself only forbids such action when it is practical, and certainly it is not practical if the width of the road does not permit leaving 20 clear feet of driving space. Not only does the statute apply only when it is practical according to its own terms, but the provision for "a clear and unobstructed width of at least 20 feet" is by the statute described as "such part of the highway opposite such standing vehicle," and the statute provides for such clear and unobstructed width of 20 feet "for the free passage of other vehicles" and a clear view of such stopped vehicle available for a distance of 200 feet in each direction. Under the conditions existing in the present case there was no such part of the highway as could be described as 20 feet of clear and unobstructed driving width for the passage of other vehicles, and the record shows there were no other vehicles seeking to pass. It is manifest that the statute is intended to have a practical application, and that it is to be practically applied in a reasonable manner to existing conditions, and if not, we submit that it is unreasonable and unconstitutional. In the present case it was not practical for the bus driver to leave 20 clear and unobstructed feet to the left of the bus because the highway was not that wide, and the record shows that it had no such width for a considerable distance and possibly for miles. We submit that it was the duty of the bus driver to pull as far to the right of the paved portion of the highway as he could reasonably do with safety to the passengers on board the heavily loaded bus, and this the record shows overwhelmingly that he did. We submit that he acted in a reasonable and practical manner. It was his duty to stop at the signal of the passenger as soon as he could reasonably do so, and his testimony shows that he traveled several hundred feet after the buzzer sounded, and that he stopped in a place which he testified he judged to be safe. It is further true that there was no other traffic passing the bus or the Danforth car at the time of the collision, and therefore the statute is not applicable because there was no occasion for the free passage of "other vehicles." It is manifest in the statute that it is possibly a rescript of some law of another state, and probably one where traffic conditions are greatly congested and where the highways are very wide, as they are in many places in the North, East and West, but it is commonly known that the highways in Mississippi are of recent construction and that they are very narrow compared to other states where population is more dense and traffic more dangerous. It is a fact of common knowledge that in a great many states highways have four lanes and sometimes more, and paved portions of roads are wide enough to admit the passage of four vehicles abreast and frequently more. Such a statute where conditions permitted and where it would be practical might inhibit parking on the pavement without leaving a clear driving space of 20 feet, but certainly no such facts exist in Mississippi, and particularly not in the vicinity of the wreck in controversy here. We, therefore, submit that the instruction is fatally defective.
It is the duty of a driver of a motor vehicle to keep a lookout for other vehicles and persons and to keep his machine under control. He has no right to assume that the road is clear, but must, under all circumstances, and at all times, be vigilant, and must anticipate and expect the presence of others, and if he fails so to do, he is guilty of negligence.
Flynt v. Fondren, 122 Miss. 248, 84 So. 188.
Not only was the burden on the plaintiffs to show that Robert Danforth exercised ordinary and reasonable care, but there was no duty on the defendant except that of ordinary and reasonable care.
Duke v. Mitchell, 153 Miss. 880, 122 So. 189.
See also Terry et al. v. Smylie, 161 Miss. 31, 133 So. 662; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Avery v. Collins, 171 Miss. 636, 157 So. 695; Pietri v. Louisville N.R. Co., 152 Miss. 185, 119 So. 164; Southern Ry. Co. v. Miller (Ala.), 147 So. 149.
Proximate cause of an injury is that cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury, and without which the result would not have occurred. To establish a right to maintain an action for negligence, the burden is on the plaintiff to show that there was a negligent act or omission by the defendant, and that it was the proximate cause of the injury, or a cause which proximately contributed to it.
Thompson v. Mississippi Cent. R. Co., 175 Miss. 547, 166 So. 353; New Orleans N.E.R. Co. v. Burge, 191 Miss. 303, 2 So.2d 825; Mauney v. Gulf Refining Co. et al., 193 Miss. 421, 8 So.2d 249, 9 So.2d 780; Blizzard v. Fitzsimmons, 193 Miss. 484, 10 So.2d 343; Simon v. Dixie Greyhound Lines, Inc., 179 Miss. 568, 176 So. 160; Roberson v. Rodriguez et al. (La.), 186 So. 853; Orphey v. Sutton et al., Mitchell v. Sutton, and Andrus v. Same (La.), 8 So.2d 766; LeBlanc v. Jordy (La.), 10 So.2d 64; City of Miami v. Saunders (Fla.), 10 So.2d 326; Rector v. Allied Van Lines, Inc., et al. and Rogers v. Same (La.), 198 So. 516; Note in 131 A.L.R. 562, et seq.
Currie Currie, of Hattiesburg, for appellees.
The appellant contends that it had a right to stop its common carrier bus on the pavement on this highway and in this dangerous place on this hillside, to let this passenger off, regardless of Section 90, Laws of 1938, ticket or no ticket, contract or no contract, legal duty or no legal duty, station or no station, and it further contends that if this statute, Section 90, Laws of 1938, should be held or construed to apply to it in this case, then the statute is unconstitutional and void.
We assert emphatically that this statute does apply straight-out to the appellant in this case and that the statute is constitutional.
The statute applies uniformly to every person and class of persons who operate motor vehicles upon and over the highways of the State of Mississippi.
The highway involved is a state and federal highway, subject to and under the jurisdiction of the Highway Commission or Department of the State of Mississippi and the federal government and is one of the main thoroughfares of public travel in and through the State of Mississippi and is one of the most heavily traveled highways in the State of Mississippi, and the place of the collision and injury of the deceased on said highway was outside of a business or residence district and as such highway is subject to Section 90, Laws of 1938.
It was the manifest purpose of the legislature of the State of Mississippi in enacting this statute to safeguard and protect public travel and the lives and limbs of travelers on the highway of this state by prohibiting any and every operator of a motor vehicle from stopping, parking or leave standing any motor vehicle on the paved, improved or main traveled part of such highway, subject and subject only to the provisions set out in the statute itself.
We quote subdivision (a) of said section: "Sec. 90. (a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of 200 feet in each direction upon such highway." After the words "when it is practical to stop, park, or so leave such vehicle off such part of said highway," this subdivision (a) of said section emphatically declares: "But in every event a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of 200 feet in each direction upon such highway."
The legislature by this language clearly meant that no matter where on any highway subject to this act the operator of any motor vehicle might stop, park or leave the same standing on the paved or improved or main traveled part of such highway, such stopping, parking or leaving of such motor vehicle would be a violation of this subdivision (a) of this statute unless such operator of such vehicle left a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing vehicle for the free passage of other vehicles. Any person operating a motor vehicle on any highway subject to this statute who stopped, parked or left such motor vehicle on the paved or improved or main traveled part of such highway in a place where it was impractical or impossible to leave a clear and unobstructed width of at least 20 feet of such part of such highway opposite such standing vehicle, for the free passage of other vehicles, would be guilty of a violation of this statute.
The manifest purpose of the legislature was to prohibit any operator of a motor vehicle from stopping, parking or leaving the same standing upon the paved or improved or main traveled part of such highway at any point or place on such highway where it was impossible or impractical to leave a clear and unobstructed width of at least 20 feet of such part of such highway opposite such standing vehicles for the free passage of other vehicles. Any other construction would destroy the manifest intent of the legislature. In other words, the manifest purpose and intent of the legislature in using these words, "but in every event" was to prohibit any person from stopping, parking or leave standing on a public highway in this state, on the paved or improved or main traveled part of such highway, at any point or place on such highway where it is impractical or impossible for any reason to leave a clear and obstructed width of at least 20 feet for the free passage of other vehicles. And under this statute the appellant and its driver had no right to stop its bus and leave it standing on the paved and traveled part of this highway at a place where it was not only impractical but impossible to leave a clear and unobstructed width of at least 20 feet of the paved, improved or main traveled part of said highway for the free passage of the deceased and of other vehicles and the driver of said bus of the appellant saw and knew that it was impractical if not impossible for him to stop said bus at said place on the paved or improved or main traveled part of said highway and leave a clear and unobstructed width of at least 20 feet of such part of said highway opposite such standing bus for the free passage of the deceased or other vehicles.
In subdivision (b) of this statute is the only savings clause or the only exception, and it applies only in cases in which such motor vehicle "is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position."
The whole evidence in the case shows conclusively that there was no such emergency as that provided for in subdivision (b) of said statute.
There is a clear implication, if not an open argument, in the brief of the appellant that this court ought to hold this statute unreasonable and, therefore, unconstitutional, because it is said that this statute is a mere rescript of the statute of some other state which had far superior highway facilities than this state, highways with four, five, six or maybe more lanes of public travel, and that this is an unreasonable statute for the State of Mississippi and that it cannot possibly be obeyed or enforced in the State of Mississippi, and it is likewise clearly implied in the brief and argument of the appellant that there really is no legislative intent involved in this statute, that it is a mere rescript of some other statute, and ought to be ignored by the courts of this state as unauthorized, unreasonable and unconstitutional.
In answer to all of which arguments we assert that this statute was actually enacted by the legislature of our state, and we further assert that the wisdom of the legislature in enacting this statute is clearly manifested in its provisions, and we further assert that it is not within the judicial power of any court to declare this or any other statute unconstitutional on the mere ground, such as the contention of the appellant in this case, that it was unwisely enacted by the legislature. The only remedy for such error or complaint against this statute, as that asserted by the appellant in its brief, would be the repeal of the statute by the legislature.
No court of record in this state has ever assumed to exercise the legislative power of repeal, and we respectfully submit that the only way for the appellant, or the owner and operator of any other common carrier motor bus system in this state which have such objections to the statute as that urged by the appellant in this case, is to procure a repeal of the statute by the legislature. It has no right to urge its repeal upon this or any other court. And under the facts of this case, we respectfully submit that before this court could hold that this statute does not apply to the appellant, it would be compelled to substantially repeal this statute — judicially.
Stopping this bus at such place under the facts and circumstances in this case was gross negligence, statute or no statute, but we contend that Section 90, Acts of 1938, is constitutional.
Teche Lines v. Bateman, 162 Miss. 404, 139 So. 159; Laflamme v. Lewis (N.H.), 192 A. 851; Borneman v. Lewis (N.H.), 192 A. 851; Ex parte Harrison (Tex.), 122 S.W.2d 314; Ball et al. v. Gessner, 240 N.W. 100.
While automobilists have the right to use public highways for the purpose of pleasure or business, yet this right is not so sacred that it is beyond the control of the state and the municipal divisions. On the contrary, there is no dissent from the general rule that the legislature, by virtue of its police power, may make regulations governing the conduct of the owners and drivers of motor vehicles.
Brogan et al. v. Hosey et al., 172 Miss. 869, 161 So. 690; Snyder et ux. v. Campbell, 145 Miss. 287, 110 So. 678; People's Rapid Transit Co. v. Atlantic City, 105 N.J.L. 286, 144 A. 630, 633; Roberto v. Dept. of Public Utilities, 262 Mass. 583, 160 N.E. 321; Packard v. O'Neil, 45 Idaho, 427, 262 P. 881; Merchants Planter's Bank v. Brigman, 106 S.C. 362, 91 S.E. 332, L.R.A. 1917E, 925; Peters v. San Antonio (Tex.), 195 S.W. 989; Cyclopedia of Automobile Law, Huddy (9 Ed.), Volumes 1-2, Sec. 52, p. 188.
Under the evidence in this case the appellant cannot maintain its contention that this statute, if applied to the appellant in this case, would be unreasonable and unconstitutional, because it was impossible for the driver of the common carrier motor bus of the appellant to stop such bus off of the paved or improved or main traveled part of said highway, because the highway was too narrow.
Under the evidence and the verdict of the jury, the negligence of the driver of this common carrier motor bus of the appellant and his violation of this statute, said Section 90, is a settled question. This testimony and the verdict of the jury ends the contention of the appellant that it was and is entitled to a peremptory instruction. In considering the request or motion of the appellant for a peremptory instruction, the court would be and is compelled, by the law, to accept and treat this testimony as absolutely true. Such is the settled law in this state. The jury accepted it as true and it completely supports their verdict.
Keith v. Yazoo M.V.R. Co., 168 Miss. 519, 151 So. 916.
We respectfully submit that this statute is constitutional and that it applies to this case.
The appellant complains of an instruction of the appellees because it uses the words "not in any emergency," and says it cannot locate the word "emergency" in the statute, but the appellant cannot intelligently contend before this court that said subdivision (b) of said statute does not describe and define what would be, or what would have been, an "emergency" if there was or had been any evidence in the case proving or tending to prove any such accident, event or happening as that described and defined in said subdivision (b) of said Section 90 of said Acts. Nor can the appellant intelligently deny that the word "emergency" as used in this instruction did not or would not have applied to such accident, event or happening as that defined and described in said subdivision (b) of said Section 90 of said Acts of 1938, if the evidence had shown any such emergency. This contention, when analyzed, in the face of the actual facts in this record, is another strong and invincible reason why the appellant was not entitled to a peremptory instruction, because this instruction is correct in the light of the facts in this case, based upon said Section 90 of said Acts, and there was absolutely no evidence of any such emergency as that defined and described in said subdivision (b) of said Section 90 of said Acts.
This instruction was far more liberal than the statute and was far more liberal than the appellant was entitled to under the facts disclosed by the evidence in this case.
Stevens Stevens, of Jackson, amicus curiae.
A temporary stop of a common carrier motor bus to take on or discharge a passenger would not be a violation of Chapter 200, Laws of 1938.
Leary v. Norfolk Southern Bus Corp. (N.C.), 18 S.E.2d 426; Peoples v. Fulk (N.C.), 18 S.E.2d 147; Hochberger v. G.R. Wood, Inc., 124 N.J.L. 518, 12 A.2d 689, 131 A.L.R. 579; Jaggers v. Southeastern Greyhound Lines, 34 F. Supp. 667; Billingsley v. McCormick Transfer Co., 58 N.D. 913, 228 N.W. 424; Haight v. Luedtke et al., 239 Wis. 389, 1 N.W.2d 882; Miller v. Douglas et al. (W. Va.), 5 S.E.2d 799; Lamberson v. Wiltse et al., 31 N.Y.S. 3, 177 Misc. 514; American Co. of Arkansas v. Baker (Ark.), 60 S.W.2d 572; Lukin, Administrator, v. Marvel, 219 Iowa, 773.
The statute under review should in any event be construed as announcing a standard of conduct in this, to-wit: That no person shall stop, park or leave standing any vehicle upon the paved or improved or main traveled portion of the highway when it is practical to turn off the highway to that extent that an unobstructed width of at least 20 feet shall be left for the free passage of other vehicles, and a clear view be available from a distance of 200 feet in each direction, and if the operator of the vehicle does all that it is practical or possible to do under the circumstances, he would not violate the statute.
Kadlec v. Al Johnson Construction Co. et al., 217 Iowa, 299; Capital Motor Lines v. Gillette (Ala.), 177 So. 881; Tarry Warehouse Storage Co. v. Duvall (Tex.), 115 S.W.2d 401; Kelly v. Locke et al., 186 Ga. 620; Dohm v. R.N. Cardozo Brother, 165 Minn. 193; Kormos v. Cleveland Retail Credit Men's Co. (Ohio), 3 N.E.2d 427; Anna Herman, Administratrix, De Bonis Non, v. Sladofsky, 301 Mass. 534; Guderyon v. Wisconsin Telephone Co. et al. (Wis.), 2 N.W.2d 242; McCoy v. Fleming, 153 Kan. 780, 113 P.2d 1074; Annotation, 131 A.L.R. 566, 567, par. 3.
Compare Ruggles v. John Deere Plow Co. (Tex.), 146 S.W.2d 456; Fitzpatrick v. California Hawaiian Sugar Refining Corporation, Ltd. (Ill.), 32 N.W.2d 990.
The phrase "when it is practical to stop, park or so leave such vehicle off such part of said highway," should be construed to apply not only to the first half of Section 90(a) but also the last half.
The statute applies to any and every kind of vehicle and accordingly the court is here dealing with a matter of great public interest to the operators of motor vehicles of every kind and horse drawn vehicles. If the court applies the law announced by the instructions in the case at bar, it would deny to multiplied thousands their constitutional right to travel or to use the highways for the very purpose for which they were constructed. Every statute is to be so construed, if possible, to avoid a clash with the organic law of the state or a denial of fundamental rights.
See Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449; Schneider v. Irvington, 84 L.Ed. 155.
From the information thus known or easily acceptable, this court is bound to know that it is impossible for vehicles to park completely off of the paved highways of Mississippi in a way to leave 20 feet clearance unless they proceed to the intersection of a secondary road, and violate another provision of the same law, by parking in the intersection. There may be just a few places where filling stations have been constructed and where, by permission of the owners of the filling stations, a bus might drive completely off the highway. Such a situation is an exception, and not likely to be a place where an inhabitant of a rural section wants to board or disembark from a bus.
It is sufficiently shown, we think, that appellant does have the elastic system of taking on and discharging passengers anywhere along the highway, and the court is bound to know that this is a facility of great advantage to multiplied thousands, and that if the bus company has advertised such an elastic service, and by custom executed it, then certainly it would violate the obligation it owes to a passenger if it did not stop its bus on flag or on the signal given by the buzzer, and that a failure to do so would subject it to an action of damages.
Tri-State Transit Co. v. Martin, 181 Miss. 388, 179 So. 349.
We, therefore, appeal to this court to permit the common carriers by motor vehicle to continue this elastic service, which manifestly promotes the public interest. The railway companies are no longer interested in short line passenger routes. The obligation placed on bus companies to furnish local service relieves the railroads from an unprofitable business, and answers the increasing demands by the public, which demands are now intensified and enlarged by gasoline and tire rationing and increased travel due to the war effort. This court knows that about one-half of the population of Mississippi is colored, and practically their sole means of transportation is on busses, and most of them get on and off busses at wayside places and lonesome stretches in the rural communities. They have no means to go to and from central stations.
Currie Currie, of Hattiesburg, for appellees, in reply to the brief of Stevens Stevens, amicus curiae.
The public highways of this state are created and maintained at public expense by the people of this state primarily for public travel and the lives and limbs of the people of this state and the safety of the public travel on the public highways of this state were and are directly involved in this statute, Section 90, Article 13, General Laws of Mississippi, 1938, and we take it that there was and can be no doubt that the subject matter of this statute was and is within the scope of the necessary police powers of this state and that the enactment of this statute was within the legitimate exercise of the police power of this state by the legislature of this state and not outside the scope thereof.
2 Cooley's Constitutional Limitations (8 Ed.), Ch. 16, pp. 1223-1228.
The exercise of the power for the public welfare may inconvenience individuals, increase their labor, and decrease the value of their property. It is a matter resting in the discretion of the legislature, and the courts will not interfere therewith except where the regulations adopted are arbitrary, oppressive, or unreasonable. Their wisdom or expediency cannot be subjected to judicial review.
State v. J.J. Newman Lumber Co., 102 Miss. 802, 59 So. 923; Newsom et al. v. Cocke et al., 44 Miss. 352; City of Jacksonville et al. v. Bowden (Fla.), 64 So. 769; Pawloski v. Hess (Mass.), 144 N.E. 760, 35 A.L.R. 945; In re Milecke, 52 Wn. 312, 132 Am. St. Rep. 968; Ex parte Kair, 28 Nev. 127, 113 Am. St. Rep. 817; State v. Swagerty, 203 Mo. 517, 120 Am. St. Rep. 671; City of Bangor v. Peirce, 106 Me. 527, 138 Am. St. Rep. 363; Richardson v. McChesney, 128 Ky. 363, 129 Am. St. Rep. 299; Schaake et al. v. Dolley et al., 85 Kan. 598, Ann. Cas. 1913A, 254; Hirth-Krause Co. et al. v. Cohen et al., 177 Ind. 1, Ann. Cas. 1914C, 708; Ball v. Gessner, 185 Minn. 105, 240 N.W. 100; 6 R.C.L. 203, par. 199.
A statute cannot be declared invalid because the court regards it as unjust and oppressive. The justice, wisdom, and expediency of laws are within the exclusive province of the legislature. The legislature may, in the exercise of the police power, when the public interest demands it, define and declare public offenses, the effect of which restricts and regulates the use and enjoyment of property.
People of the State of New York v. Beakes Dairy Co., 222 N.Y. 416, 3 A.L.R. 1260; Park v. State of Nevada, 178 P. 389, 3 A.L.R. 75.
See also Schmitt v. Cook Brewing Co. (Ind.), 120 N.E. 19, 3 A.L.R. 270; State of Minnesota v. Miolen et al., 167 N.W. 345, 1 A.L.R. 331; Hunter v. Colfax Consolidated Coal Co., 175 Iowa, 245, Ann. Cas. 1917E, 803; State ex rel. Collins, Atty. Gen., v. Senatobia Blank Book Stationery Co., 115 Miss. 254, 76 So. 258; Martin v. Dix, 52 Miss. 53; Patterson v. Commonwealth of Kentucky, 24 L.Ed. 1115; Gilman et al. v. City of Philadelphia, 18 L.Ed. 96; Commonwealth v. Moir, 199 Pa. St. 534, 85 Am. St. Rep. 801; New York Life Ins. Co. v. Hardison, 199 Mass. 190, 127 Am. St. Rep. 478; State ex rel. Davis-Smith Co. v. Clausen, 65 Wn. 156, 117 P. 1101; 1 Cooley's Constitutional Limitations 341.
It cannot be reasonably or successfully contended that it was not within the exercise of the police power by the legislature of the State of Mississippi to enact this statute and the statute is entirely reasonable and is not oppressive and can be obeyed by the appellant in this case and all other common carriers by motor bus on and over the public highways of this state, and if it should be permitted to the appellant in this case, or the Tri-State Transit Company, or any other common carrier by motor bus, to stop at any time or place on the highway to take on or let off a passenger or passengers, in the face of the plain, positive, certain and direct language of this statute, any other and every other traveler by motor vehicle, or any other means, on and over the public highways of this state would have the same right, because the statute of this state must be applied uniformly, and such a construction and application of the statute would completely abolish it, because it would offer inducements to the very dangers which the statute was intended to prevent and would subject the highways of this state and all public travel on the highways of this state to the very dangers intended to be prohibited by this statute. The only remedy and the true remedy is the legislative repeal of this statute if the courts and the people of this state do not want it.
Champion v. Ames, 47 L.Ed. 492.
The theory underlying the contention of the appellant, Teche Lines, Inc., and the Tri-State Transit Company is that it is impossible to operate their common carrier motor busses and to engage in their common carrier business by motor bus on and over the highways of this state, under this statute, because they say they cannot find room or places to get off of the paved portion of the highway as required by this statute, and that for that reason it is impossible to obey the statute and that if this statute is upheld as constitutional and if they are compelled to obey it they will be compelled to abandon their common carrier business by motor bus on and over the highways of this state. That is what their contention really comes to. In reply to that contention and as settling the true principle of law involved in that contention, and settling it directly against the contention of said appellant and the Tri-State Transit Company, we call the attention of the court to the true rule of law announced by the Supreme Court of the United States in the case of McCray v. United States, 49 L.Ed. 78.
See also Russ v. Commonwealth, 210 Pa. St. 544, 105 Am. St. Rep. 825; Mount Vernon-Woodberry Cotton Duck Co. v. Frankfort Marine Accident and Plate Glass Ins. Co., 111 Md. 561, 134 Am. St. Rep. 636; Clarkson v. Philips (Fla.), 70 So. 367; Cram v. Chicago, Burlington Quincy Ry. Co. (Neb.), 19 Ann. Cas. 170; Laughlin et al. v. City of Portland, 111 Me. 486, Ann. Cas. 1916C, 734; Scown v. Czarnecki et al., 264 Ill. 305, Ann. Cas. 1915A, 772; Case v. Howell, 85 Wn. 294, Ann. Cas. 1916A, 1231.
A state statute can only be adjudged invalid by virtue of some specific limitation or prohibition in the state or federal constitutions, and courts will not declare a law repugnant to the constitution without a strong conviction beyond all reasonable doubt, and the existence of a reasonable doubt requires the court to sustain the act.
State ex rel. Weinberger v. Miller et al., State ex rel. Fritch v. Board of Deputy State Supervisors of Elections, 87 Ohio St. 12, Ann. Cas. 1913E, 761; Chicago, Burlington Quincy Ry. Co. v. People of the State of Illinois ex rel. I.O. Grimwood, F.L. O'Brien, and Joseph Eccles, as Commissioners of Drainage District No. One of the Town of Bristol, Kendall County, Illinois, 50 L.Ed. 596.
In this case, neither the Teche Lines, Inc., the only defendant in this case, nor the Tri-State Transit Company can question the constitutionality of said Section 90, Article 13, General Laws of Mississippi, 1938, on the ground that its enforcement would impose upon them the inconvenience and expense of preparing and establishing stations and places on and along the highways of this state where they could stop their common carrier motor busses off of the paved and improved and main traveled portion of the highway as required by this statute. The people of the State of Mississippi construct and maintain at their own public expense, in the main, the highways which are occupied and used by these common carrier motor bus companies and corporations in the conduct of their business, and these public highways were and are constructed and maintained by the people of the State of Mississippi at their own public expense, in the main, and were and are so constructed and maintained primarily for the use and benefit of the people of this state and of public travel on the public highways of this state, and Teche Lines, Inc., and Tri-State Transit Company are the only such corporations complaining against this statute, so far as we know, and they each and both obtained permits, franchises or certificates of necessity and convenience to so occupy and use the public highways of this state, for such transportation purposes, subject to the laws of this state, to the police powers of this state and to the exercise of the police powers of this state by the legislature and we assert, with the support of the unquestioned authority of the Supreme Court of the United States, that this statute is constitutional and that it is not violative of either the Constitution of the United States or of the State of Mississippi, and that this statute was designed and intended by the legislature of the State of Mississippi and was written in the exact language in which it was written to fully and clearly and definitely state that intention — the intention to protect and promote the safety of the public highways of this state and the safety of the lives and limbs of travelers on the public highways of this state — and the inconveniences and the expenses imposed upon such common carriers, by motor bus, on and over the highways of this state, would not be unreasonable, or confiscatory, but would be meager in comparison with the profits manifestly made by such corporations engaged in such common carrier transportation business by motor bus on and over the public highways of this state constructed and maintained in the main by the people of the State of Mississippi, and we are justified and authorized by the settled laws of this country as set out in this brief, and we are undoubtedly supported by such authorities in asserting that the legislature of this state had the right to and no doubt did have all those matters in mind, and settled all such questions in its legislative mind, before and at the time of the enactment of this statute.
New Orleans, J. G.N.R. Co. v. Hemphill, Same v. Clements, 35 Miss. 17; Bacon v. Walker et al., 51 L.Ed. 499; State v. Pitney, 79 Wn. 608, Ann. Cas. 1916A, 209; Dewey v. United States, 178 U.S. 510, 44 L.Ed. 1170; 1 Lewis' Sutherland Statutory Construction 136, 137, par. 85.
If a statute is plain, certain and unambiguous, so that no doubt arises from its own terms as to its scope and meaning, a bare reading suffices; then interpretation is needless.
United States v. Hartwell, 18 L.Ed. 830; Ruggles v. People of the State of Illinois, 27 L.Ed. 812; Knox County v. Morton, 68 F. 787; St. Paul, M. M. Ry. Co. v. Sage, 71 F. 40; Swarts v. Siegel et al., 117 F. 13; 2 Lewis' Sutherland Statutory Construction 695.
Specific provisions as to a particular subject in a statute are neither abridged nor enlarged by subsequent general provisions in the same statute which are broad enough to apply to the same subject.
In re Rouse, Hazard Co., 91 F. 96; Natchez S.R. Co. v. Crawford, 99 Miss. 697, 55 So. 596.
All doubts are resolved in favor of the constitutionality of the statute. If there is reasonable doubt of its constitutionality it must be upheld by the courts. If it is susceptible of two interpretations, one in favor of its constitutionality and the other against, it is the duty of the courts to uphold it.
St. Paul, Minneapolis Manitoba Ry. Co. v. Phelps, 34 L.Ed. 767; Dewey v. United States, 178 U.S. 510, 44 L.Ed. 1170; Lee Brothers Furniture Co. v. Cram, 63 Conn. 433; Cooley's Constitutional Limitations (7th Ed.), pp. 252, 253, 254; 2 Lewis' Sutherland Statutory Construction, pp. 745, 746.
It appears settled law in the United States of America that the sovereign police power may constitutionally be used to protect, preserve and promote public decency, public morals, public peace, public welfare and public safety, and particularly upon the public highways and streets, and if the sole object and purpose and the single intent of the legislature of the State of Mississippi in enacting Section 90, Article 13, General Laws of Mississippi, 1938, to protect, preserve and promote the public safety of the public highways of this state and the public safety of the lives and limbs of the traveling public on the public highways of this state, is not within the proper exercise of the police power, then we have been unable to form a sound judgment as to the meaning of public safety.
Reid v. People of the State of Colorado, 47 L.Ed. 108; Smith v. St. Louis S.W.R. Co., 181 U.S. 248, 45 L.Ed. 847, 21 Sup. Ct. 803; Kimmish v. Ball, 129 U.S. 217, 32 L.Ed. 695, 2 Inters. Com. Rep. 407, 9 S.Ct. 277; Missouri, K. T.R. Co. v. Haber, 169 U.S. 613, 42 L.Ed. 878, 18 S.Ct. 488; Grimes v. Eddy, 126 Mo. 168, 26 L R.A. 638, 28 S.W. 756; United States Code Annotated, Constitution, Amendment 14 to End, Part 3.
We urge that under the Constitution of the United States and under the Constitution of the State of Mississippi and under the decisions of the Supreme Court of the United States involving the constitutional exercise of the legislative police power, that this statute, Section 90, Article 13, General Laws of Mississippi, 1938, is constitutional. And it is further submitted and urged that the authorities which we have cited uphold the constitutionality of that statute.
This case involves the proper and permissible interpretation of Sec. 90, Chap. 200, Laws 1938, known as the uniform highway traffic regulation act. This section reads as follows:
"(a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of 200 feet in each direction upon such highway.
"(b) This section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position."
The facts, so far as material to the point to which we shall confine this opinion and decision, are that appellant is an authorized carrier of passengers by motor bus, and on the occasion in question stopped its bus to let off a passenger in pursuance of its established custom and duty in such cases. The pavement of the highway was 20 feet wide, and according to the overwhelming weight of the evidence the shoulders on each side were about 3 1/2 feet wide, making a total width of 27 feet. The stop was made about halfway down an incline approximately 1100 feet long. The bus was about eight feet wide, so that when some room was left to the passenger to alight on the shoulder, and not in the ditch, it was impossible to leave 20 feet clearance opposite the bus. While the passenger was making his way out of the bus, appellee's decedent ran into the rear of the bus and suffered injuries from which he died.
The trial court granted appellees the following instructions:
"The Court instructs the jury for the plaintiffs that if you believe from the testimony in the case, that the bus of the defendant was stopped upon the paved or improved or main traveled part of Highway 11, not in an emergency, at a place and time and in such way as not to leave a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing bus or vehicle, then such stopping of said bus or vehicle at such time and place, and under such condition, if you believe it was so parked, was a violation of the law and negligence, and if you further believe from the testimony that such negligence, if any, proximately caused or contributed to the injury and death of the deceased, then the defendant is liable, and it is your duty to find and return a verdict for the plaintiffs."
The quoted instruction, as may be readily seen, amounts to a peremptory charge in favor of the plaintiff. It tells the jury that if less than 20 feet clearance was left by the bus, this was negligence. The instruction did not permit the jury to say whether it was possible or practical to leave that much, and, as a matter of fact, by the overwhelming evidence, as already stated, it was not even possible much less practicable. It did not permit the jury to say whether the bus was stopped as far to the right on the highway as was possible, and at the same time safe, considering the high degree of care which the bus driver owed to the passengers, including the one then about to alight.
The central principle which runs through all the cases dealing with statutes regulatory of highway traffic is that such statutes must have a practical or workable interpretation, not an arbitrary or unreasonable construction, and never that which would require an impossibility; and this has been the rule from the earliest enactments of such statutes down to this day. We do not prolong this opinion by going into a review of pertinent cases from other states. Hundreds of them are cited and annotated in the elaborate note found in 131 A.L.R., pp. 562 to 607, among which we might mention Kelly v. Locke, 186 Ga. 620, 198 S.E. 754, as particularly persuasive. No case has been cited by appellee, nor have we found any, which under its particular facts would sustain the quoted instruction under facts such as are presented by the record here before us. Even the Minnesota case, Ball v. Gessner, 185 Minn. 105, 240 N.W. 100, of which so much has been made, and which is inaccurately annotated in Vol. 11, Uniform Laws Annotated, at page 48, does not under its facts or under all the language used by the court sustain any such technical interpretation of the statute, or any such hard and fast instruction as was given to the jury in the case at bar. Ball v. Gessner, supra, did not involve a vehicle temporarily stopped for a legitimate or necessary purpose as an incident to travel, but there the truck was parked in the road while the driver was holding a ten-minute conversation with a person over on a roadside farm. As the facts show, and as we shall later mention, we are not dealing in the present case with a parked vehicle.
And we do not need to go to other states for the principle which is to be applied. In Boyd v. Coleman, 146 Miss. 449, 111 So. 600, there was the case where damages were claimed for the non-issuance of automobile tags during the month of December, as required by statute. The defense was that no tags were available during that month and that it had been impossible to obtain them until January 6th. The court held that although plainly there had been a technical violation of the statute it was not actionable because of the impossibility of compliance therewith. The court said: "The law does not require doing of an impossible thing, and statutes should not be construed to require performance of duties which are rendered impossible of performance by reason of causes for which person is in no way responsible and powerless to change or remove." And the court said further, and in language which precisely fits this case: "All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the Legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter. . . . It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. . . . This is not a substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include the act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the Legislature intended to include the particular act." See, also, Byrd v. Byrd, 193 Miss. 249, 8 So.2d 510, 512.
In one of our latest cases, Zeigler v. Zeigler, 174 Miss. 302, 303, 310, 164 So. 768, citing numeous other cases in this state it was held that unthought-of results or those which would lead to absurdity will be avoided in the interpretation of statutes, although within the technical terms of the statute, if possible to find a reasonable construction which will avoid such results.
While admitting, as must be admitted, that impossibilities are not required by any statute whatever its subject, it has been argued that when impossible to stop so as to leave as much as 20 feet clearance, the vehicle must keep going until a place may be found where the required clearance can be left, and that argument has proceeded so far as to say that if this require a going forward of ten miles or even farther, this must be done or else the statute would be violated.
This court may, and it is its duty to, take judicial knowledge of what everyone knows who has been beyond his own door sill, that at least 85% of the public highways of this state are of such width that it is only occasionally possible, and this often at distant intervals, to stop a vehicle so as to leave as much as twenty feet of unobstructed highway to the side of the vehicle. To give the statute in question the literal or hard and fast construction for which appellees contend would lead to unthought of and absurd consequences, which every experienced member of the legislature would be bound to disclaim as ever having been in his mind as a deliberate conclusion. It is enough to say of this that if such a construction could be sustained and enforced, it would dislocate and put out of business the rural mail delivery service on not less than 75% of the rural routes in the state, and a husband could not pick up his wife trudging homeward from the rural grocery store in the rain, or even to attend to a wounded or sick person found on the roadside.
Illustrations of the absurdity could be extended almost without limit; but we pursue this branch of the discussion no further than to quote from the opinion in Colvin v. Auto Interurban Co., 132 Wn. 591, 598, 232 P. 365, 368, wherein the court said: "We know that on many of our highways one would be required to run his automobile mile upon mile before a place could be found where the machine could be entirely removed from the pavement. The statute must be given a reasonable and workable construction. If there is proper excuse or necessity for stopping the car, it will be sufficient, if a reasonable effort be made to get it entirely off the main traveled portion of the road, or as nearly so as the circumstances will permit."
Aside from absurdity or unthought of consequences, we may advance a step, and a very vital step, further, and to the following inescapable consideration: "The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right in so doing to use the ordinary and usual conveyances of the day; and under the existing modes of travel includes the right to drive a horse-drawn carriage or wagon thereon, or to operate an automobile thereon, for the usual and ordinary purposes of life and business." Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 583, 71 A.L.R. 604, 610. There seems to be no dissent among the authorities on this proposition. See 11 Am. Jur. Constitutional Law, Sec. 329, p. 1135, and the language of the court in Pinkerton v. Verberg, 78 Mich. 573, 44 N.W. 579, 7 L.R.A. 507, 18 Am. St. Rep. 473.
The right to travel means, of course, the right to go from one place to another. It includes the right (1) to start, (2) to go forward on the way, and (3) to stop when the traveler's destination has been reached. To speak to the first two of these as fundamental rights without including the third would be to descend again to the absurd, and so far as the instant case is concerned that is what we have here. But we do not so limit the right. We affirm that it includes the right to stop on the way, temporarily, for a legitimate or necessary purpose when that purpose is an immediate incident to travel. So it is that the texts and authorities declare that the right to stop when the occasion demands is an incident to the right to travel, a proposition so completely self-evident that no authority is necessary to sustain it, and which we would pronounce irrefutable, had it never heretofore been mentioned. But here are some of the authorities which do declare and sustain it. 2 Blashfield Automobile Law, Perm. Ed., sec. 1191, p. 321; Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025; Morton v. Mooney, 97 Mont. 1, 33 P.2d 262, 263; Albrecht v. Waterloo Const. Co., 218 Iowa, 1205, 257 N.W. 183. When, then, the right to stop is arbitrarily or unreasonably restricted or cut off by statutory enactment, the statute is as objectionable from a constitutional standpoint as had the enactment prevented going forward.
The rights aforesaid, being fundamental, are constitutional rights, and while the exercise thereof may be reasonably regulated by legislative act in pursuance of the police power of the state, and although those powers are broad, they do not rise above those privileges which are imbedded in the constitutional structure. The police power cannot justify the enactment of any law which amounts to an arbitrary and unwarranted interference with, or unreasonable restriction on, those rights of the citizen which are fundamental. State v. Armstead, 103 Miss. 790, 799, 60 So. 778, Ann. Cas. 1915B, 495.
Since, as already mentioned, this court must take judicial knowledge of what everybody knows, namely, that at least 85% of the public highways in this state are of such width that it is only occasionally possible, and this at distant intervals, to stop a vehicle so as to leave as much as twenty feet of unobstructed highway, which would mean that over long stetches of our public roads no vehicle could stop without violating the law, if that clause in the statute which requires that in any event twenty-foot clearance shall be left is to be enforced according to its literal terms, detached from the remainder of the statute, the result would be an unreasonable and arbitrary abridgment of the right to travel, thus rendering the statute unconstitutional when so interpreted, and to the extent so interpreted.
The rule is without exception that when the court is confronted with a statute a literal construction of which would render it unconstitutional, the court must adopt such a construction, when reasonably possible, as will save the statute, and at the same time save every savable provision or term in it. This can be done as to this statute by giving the word "practical" in subsection (a) an operation throughout the entire section, and by preserving as referable to the words, "in any event," the provision that, when possible, a clear view for 200 feet shall be available. It is reasonable to require a vehicle to go forward so that a clear view of it for 200 feet may be available, if possible to do so, while it would be arbitrary and unreasonable to require it to keep going whatever the distance might be, until a twenty-foot clearance could be had. And if a vehicle gives all the clearance it possibly can, and at the same time a clear view of its position for 200 feet, if possible, this is a reasonable and adequate provision for safety, requiring nothing arbitrary, whereas to say that regardless of the view of 200 or even 500 feet, the clearance of the side must, in any event, be twenty feet, is unreasonable and arbitrary as applied to the public road situation in this state.
It has been suggested that to save the statute from collision with constitutional fundamentals we should, instead of the construction which we are adopting, rewrite the section in question so that it will include only busses and other vehicles using the highways for hire, leaving all others free from the provisions of the section. There are several answers to this, but one is enough. To each vehicle operated for hire there are more than a thousand owned and operated privately. To free a thousand in order to hold one would indeed be an eccentric judicial operation. To use a homely illustration, it would be to cut off the tail and hold firmly to that, while letting the animal go. We can impute no such intention to the statute. Plainly it applies to all vehicles — busses, trucks, automobiles, buggies and wagons. Rather than resort to the stated suggestion, it would be more reasonable to read the term "stop" as having substantially the same meaning as its associated terms, "park, or leave standing;" but we do not find it necessary to go even so far as that. Rather, we can go along down the statute as a whole, and say that it was intended to have an arbitrary or unreasonable construction when applied to any and all vehicles, and applying it also to stopping; and that is what the courts have said in case after case which has arisen under this statute in other states which have it, or similar enactments.
Our ruling is that when twenty feet of clearance is impossible, the vehicle shall turn as far to the right as practical including sound and safe shoulders, but must not stop upon any part of the traveled highway unless and until at least 200 feet clear view is available in each direction from the point where the stop is made, save when the vehicle is disabled, as provided for under subsection (b); and save, further, when on account of obstructions or equivalent conditions ahead, it is impossible to proceed so as to leave the 200 feet of clear view; and that all this is for the determination of the jury, instead of being taken away from them, as was done here.
We pretermit all other questions raised in this case. We have preferred to confine this opinion to the one issue presented by the quoted instruction and the error therein. And it must be noted that we have not decided anything about the parking of vehicles or leaving them standing. Nor anything about the feature mentioned in Kelly v. Locke, supra, that a driver may be required to go forward to a place where there is an available and safe space, sufficient to allow a compliance with all the literal terms of the statute, if within a reasonably short distance ahead, and if such place be known to, or observable by, the driver in the exercise of a reasonable diligence. The feature mentioned in the foregoing sentence was not submitted to the jury by the quoted instruction, but in fact by the import of the instruction was taken from the jury, even if there had been evidence sufficient to go to the jury on that issue.
Reversed and remanded.
The controlling opinion writes out of the statute the 20-foot provision, as applied (quoting from the opinion) to "at least 85% of the public highways of this state." The statute involved is known as "the uniform traffic regulation act." It has been adopted by many of the states, with differences in some respects, but in most of their provisions they are uniform. The authorities in the briefs show that the courts of some of the states have construed the provisions of the statute involved here. None of them, however, support the holding of the majority opinion.
The state has power, for the safety of the public, to regulate the use of its public highways, and may prohibit or condition, as it deems proper, their use. Where a reduction on their use "is designed to promote the public convenience and the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection under the Constitution." Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396; State v. L. . N.R. Co., 97 Miss. 35, 51 So. 918, 53 So. 454, Ann. Cas. 1912C, 1150; State v. J.J. Newman Lbr. Co., 102 Miss. 802, 59 So. 923, 45 L.R.A. (N.S.), 851, on suggestion of error, 103 Miss. 263, 60 So. 215, 45 L.R.A. (N.S.), 858. The police power of a state can neither be abdicated nor bargained away. It is inalienable. Atlantic Coast Line R. Co. v. City of Goldsboro, 232 U.S. 548, 34 S.Ct. 364, 58 L.Ed. 721. The power is as broad and plenary as the taxing power. Kidd v. Pearson, 128 U.S. 1, 9 S.Ct. 6, 32 L.Ed. 346. The police power of the states embraces the construction of roads, canals and bridges, and the establishment of ferries, and the maintenance of highways. Escanaba L.M. Transportation Co. v. Chicago, 107 U.S. 678, 2 S.Ct. 185, 27 L.Ed. 442; New Orleans Gas-Light Co. v. Louisiana Light Heat Co., 115 U.S. 650, 6 S.Ct. 252, 29 L.Ed. 516.
The public records show that more people were killed or maimed in the United States by motor vehicles in 1941, than this country had killed or maimed in the first World War.
There is nothing in the record showing that 85% of the highways of the state would be affected, or, for that matter, any other proportion of the highways. If, however, that be a fact, according to judicial knowledge, we know in the same way there are not a dozen country mail boxes in the state that the mail carrier cannot conveniently approach by parking his car at or near the entrance to the premises being served. Furthermore, it is a matter of common knowledge that stations could be constructed in compliance with the statute, at a little expense.
In considering the application of the statute involved it is necessary to state the case made by the evidence. The controlling opinion does not do that. The collision and injury occurred about 9:30 at night, on paved highway No. 11, which runs through the city of Laurel, thence southward through Ellisville, Moselle and Hattiesburg. Clyde Douglas, a negro, was working at Laurel; his home was between Ellisville and Moselle, something like half a mile from the highway in the country. The nearest place on the highway to his home was Brannon's store and residence. The bus company sold tickets to Moselle, but not to Brannon's place. But it was in the habit of stopping to take on and let off passengers at other places along the route where tickets were not sold. Douglas was making that trip on the night of the collision and death of Danforth. As usual he had a ticket to Moselle. It was the custom of the driver of the bus to let him off at Brannon's. As usual, he pushed the buzzer for the bus to stop at that place, but instead of doing so it ran on south, down a decline, something like 350 feet, and stopped to let him off. When the collision occurred the negro was approaching the front to get off. The bus had been standing at that place about two minutes when the collision occurred. Brannon's is at the crest of the hill. There is a considerable decline going south therefrom, of something like 800 to 1,000 feet before reaching level ground. The bus was stopped about half way between these two points. The paved part of the highway is 20 feet wide, with about 3 1/2-foot shoulders on each side, made of gravel and sand. The bus was 8 feet wide and 32 feet long. It was standing with all six wheels on the paved part of the highway, leaving only about 12 feet of paved highway to its left. About 60 feet north, the evidence tends to show, there was a rise or small hill, which obstructed the vision of one driving south from Brannon's. Instead of the front righthand part of Danforth's car striking the bus, the contact was with the righthand door, resulting in part of that side of the car being torn off. The contact with the bus was on its rear lefthand side. It was manifest from the testimony that if Danforth had had a foot or two more of open space he would have passed without collision with the bus. The evidence tends to show that the statute could have been complied with at a place three or four hundred feet south of where the accident occurred, and also at Moselle, the destination of the passenger. And if the passenger had buzzed the driver of the bus in time it could, and would, have stopped at Brannon's.
And, further, if the driver of the bus had stood on the paved part of the highway, to the left of the bus, which the evidence showed was 10 or 12 feet wide, and waved a red lantern back and forth while his passenger was debarking, and Danforth had seen it, and knowing what it meant, as doubtless he would have, the accident probably would not have occurred.
The statute, in my judgment, is a valid exercise of the police power, both as to public and privately owned motor vehicles. But admit for the sake of argument that it is not as to privately owned cars. That would not necessarily mean that it would be an unconstitutional exercise of the power as to public passenger and freight carriers. A statute may be constitutional in part, and unconstitutional in part. We have here involved a public carrier of passengers. The statute means that such carrier cannot stop at any place on a public highway where its provisions cannot be complied with. In other words, so far as public carriers of passengers and freight are concerned, they must make their own turnouts in order to leave the 20-foot space and 200-foot view each way, unless such turnouts already exist.
I see no reason why the legislature could not prohibit absolutely the use of the improved highways of the state by public carriers of passengers and freight, except in communities not sufficiently served by railroads.
Smith, C.J., concurs in this dissent.
The instruction here under consideration is in complete accord with the statute as written, and, therefore, is correct unless a meaning can be given to the statute, by construction, different from what its words, on their face, imply — in other words, unless the statute can and should be so construed as not to forbid the parking of a vehicle on a highway without leaving opposite it at least twenty feet of the highway's width unobstructed. The rules of construction here invoked for that purpose are: (1) A statute should be given a reasonable construction; and (2) should not be applied here when so to do would lead to a result so absurd and unjust as to manifestly indicate that the legislature did not intend for it to apply thereto.
The first of these rules comes into play when, but not unless, the statute is ambiguously phrased, and then only as an aid in determining which of more than one of its possible meanings should be adopted. Resort may be had to the second of these rules when, but not before, the meaning of the statute under consideration has been ascertained.
The statute is admittedly plain and unambiguous, but a majority of the court say that its prohibition is arbitrary and unreasonable and that, consequently, it should be so interpreted as to remove that defect therefrom — in other words, it should be amended by judicial construction and made to mean something other than it did when it was enacted by the legislature and more in accord with what the court thinks is reasonable and just. I know of no rule of construction that so permits. The meaning which the court says should be given the statute is arrived at by the judicial insertion of the words "if practical" between the words "every event" and the words "a clear," and the insertion of the words "in any event" between the words "vehicles and" and the words "a clear view."
Clause (a) of the section, as amended, would read as follows: Upon any highway outside of a business or residence district no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event, if practical, a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and, in any event, a clear view of such stopped vehicle be available from a distance of 200 feet in each direction upon such highway.
The statute in clear and apt language positively forbids the stopping or parking of a vehicle on a highway unless both of two things concur: (1) there remains "a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing vehicle;" and (2) "a clear view of such stopped vehicle be available from a distance of 200 feet in each direction upon such highway." As now amended by judicial construction, it permits parking on a highway without leaving this twenty feet thereof unobstructed when it is impracticable so to do, provided "a clear view of such stopped vehicle be available from a distance of 200 feet in each direction upon such highway." It may be, as to which I express no opinion, that the statute as thus amended is an improvement on what it was when it was enacted, but the making of this improvement, if such it is, is for the legislature, and not for the courts.
But it is said that the right to travel in a vehicle on a highway includes the right to stop the vehicle thereon "temporarily for a legitimate or necessary purpose" and that this statute, as written, would arbitrarily interfere therewith and is, therefore, constitutionally invalid, the section of the Constitution violated not being pointed out. A traveler on a public highway may stop his vehicle temporarily thereon "provided in doing so he exercises reasonable care under the circumstances to avoid injury or damage to other travelers" (25 Am. Jur., Highways, Sec. 211), and while he cannot be arbitrarily deprived of the right so to do, its exercise may be regulated by statute. One exercising the right to park a vehicle temporarily on a highway without precaution to prevent injury therefrom to other travelers thereon may be guilty of negligence at common law, although there is a clear view of the parked vehicle for 200 feet in each direction upon such highway. Whether the one who so parked the vehicle is liable to another for injury therefrom depends, at common law and under this statute, on whether this negligence was the proximate cause of the injury, and, in some jurisdictions, but not in this, on whether the negligence of the injured person contributed to the infliction of his injury. This being true, I am unable to perceive how the requirements of this statute can be said to be unreasonable and arbitrary. It is true that it restricts, though not very materially, a common-law right, but such is the usual case with statutes dealing with that law. Moreover, when a traveler complies with the statute he is relieved from taking any further precautions to prevent injury to other travelers on the highway; consequently, the statute would seem to be beneficial rather than detrimental to him. Furthermore, if, as written, the statute violates the Constitution, that fact, the statute being unambiguous, does not authorize the court to amend it by construction so as to bring it in accord with the Constitution. The court's duty in such a case is simply to decline to enforce the statute.
Again it is said that it was impossible for the driver of this bus to park it where he did and leave twenty feet of the highway opposite it unobstructed; and, since no man can be required to do the impossible, the statute should be held not to be here applicable. The defect in this argument is that there was no necessity for the stopping of this bus at this time and place. The appellant is under no duty to stop its busses on the highway other than at places thereon at which it can comply with the law when so doing. Its duty in this connection is to run its busses according to the schedule approved by the public service commission and to provide regular stations for receiving and discharging passengers at which its busses can stop and remain standing without violating the law. I freely admit that, under an age-old legal maxim, impelling necessity excuses the violation of a statute. Several forms of this maxim appear in 45 C.J. 585, and can be found in any law dictionary. This maxim, however, can afford the appellant no comfort, for the stopping of a vehicle on a highway merely for the convenience of its driver or of another is, of course, not within its protection.
Again it is said that, within the judicial knowledge of this court, "at least 85% of the public highways of this state are of such width that it is only occasionally possible, and this often at distant intervals, to stop a vehicle so as to leave as much as twenty feet of unobstructed highway to the side of the vehicle," from which to enforce the statute, as written, "would lead to unthought of and absurd consequences." I do not know what percent of the public highways are in this condition, and if we can take judicial notice thereof, as to which I express no opinion, the appellee has brought no data, competent or otherwise, to our attention bearing thereon. But if it be true that 85% of the highways are in this condition, that fact cannot change the meaning of the statute, since it is plain and unambiguous, but might affect the validity vel non of the statute as a whole.
One thing this amendment should, but fails to, do, is to advise the traveler on a highway whether he can park his vehicle thereon when so to do would not leave a sufficient, unobstructed width of the highway opposite the parked vehicle for the passage of other vehicles.
I am requested by Justice ANDERSON to say that he concurs in this opinion.