Opinion
No. 29635.
April 4, 1932.
AUTOMOBILES.
Negligence of driver of motorbus, which collided with automobile traveling in opposite direction but stopped, held question for jury under evidence.
GRIFFITH, J., dissenting.
APPEAL from circuit court of Adams county. HON. R.L. CORBAN, Judge.
Whittington Brown, of Natchez, and Hugh V. Wall, of Brookhaven, for appellant.
A preponderance of the evidence in this case was in favor of the defendant and it established by the evidence of disinterested and credible witnesses; by the physical facts surrounding the scene of collision after the collision; by the impossibility of the collision happening as plaintiffs and their one witness say, that the defendant was entitled to the peremptory instruction requested.
Where evidence given by an equal number of witnesses for the parties litigant, the testimony of those witnesses shown to be disinterested will be given the greatest consideration in determining the true facts going to establish liability for collision between automobiles.
Briede v. Schick, Orleans No. 9116.
Where the preponderance of the evidence is for the plaintiff and his witnesses are unimpeached, he is entitled to a judgment.
Canal v. Smith, 14 Orleans App. 296.
Where verdict is contrary to the great weight of credible evidence offered in the case, it is reversible error for the court to refuse to grant the motion for a new trial.
Mobile O.R. Co. v. Bennett, 90 So. 113; Powell v. English, 122 So. 217; Columbus G. Ry. Co. v. Buford, 116 So. 819.
Under the law of Louisiana, even though the defendant had been guilty of negligence as charged in the declaration, yet if the plaintiff also was guilty of negligence contributing to the injury, she could not recover.
In case of conflict between the testimony of the plaintiff and defendant; that testimony will prevail which is corroborated by other facts of the case.
Young v. Louisiana Canning Co., Orleans No. 8140.
Under the Laws of Louisiana, just as under the Laws of Mississippi, the burden is upon the plaintiff to show fault and negligence of the defendant in the collision between the Buick and the bus.
Heath v. Baudin, 122 So. 726.
The collision could not have occurred like plaintiff and her witnesses say it did because the physical facts as disclosed by the record disputed this. The undisputed evidence shows that the front end of the Buick was not touched, neither was the front end of the bus. The evidence shows that the running board of the Buick was crushed; the rear door on the left hand side looking North and the fender on the Buick on the left hand side were damaged. That the front of the rear fender on the left hand side looking South of the bus showed signs of collision. Thus demonstrating that there was but one way for the physical signs to be made on the two cars and that was that the Buick skidded into the bus because, if the bus had skidded into the Buick, the back end of the rear fender of the bus would necessarily have struck the Buick. The front end of the rear fender of the bus could not have struck the Buick, if it had skidded into the Buick as contended by the plaintiff and her witnesses.
The mere fact that automobile skidded is not evidence of negligence.
Baret v. Cado Transfer W. Co., Inc., 165 La. 1075, 116 So. 565.
In an action for damages for personal injuries received by plaintiff in a collision with a motor truck, where the evidence shows that the plaintiff was negligent down to the moment of the collision and her negligence caused or contributed to cause the collision, and that the driver of the motor truck saw her as soon as it was possible for him to do so, and that after seeing her he did all in his power to avoid striking her with the motor truck, the plaintiff cannot recover.
Thomas v. Natural Gas Co., 9 La. App. 680, 121 So. 649.
The physical facts demonstrate and the overwhelming evidence of the eye witnesses is to the effect that the sedan slided into the bus and this being contributory negligence on the part of the appellee under the law of Louisiana, there can be no recovery.
Engle Laub, of Natchez, for appellee.
Witnesses are weighed and not counted.
Guesselich v. Nunez, La. Appeals 1924, Orleans No. 8659.
Upon questions of fact judgment will be rendered in accordance with the preponderance of the testimony.
Fine v. Finkelstein, 3 La. Appeals 347.
All presumptions are in favor of the judgment.
Bates v. Strickland, 103 So. 432, 139 Miss. 636.
Where there is some conflict in the evidence the appellate court will accept the evidence of the successful party and determine from them whether or not the Chancellor's decree must be upheld.
Biles v. Walker, 83 So. 411, 121 Miss. 98.
In reviewing finding on conflicting evidence testimony supporting finding must be accepted as true.
129 Miss. 658, 92 So. 583; Powell v. Tomlinson, 92 So. 226, 129 Miss. 354.
The appellee, plaintiff below, more than met the burden of proving her case by a preponderance of the evidence.
The jury were the sole judges of the credibility of the witnesses and evidently the court judged the witnesses the same as the jury did, for the reason that he did not grant a new trial, in this case.
Defendant in a personal injury action pleading contributory negligence has the burden of establishing defense by preponderance of evidence.
Shannon v. New Orleans Ry. Light Co., 4 Orleans Appeals 302.
Where contributory negligence is a special defense and the evidence is conflicting the court will not consider the contributory negligence proven.
Armour Packing Company v. Walker Price Oil Co., 1 La. Appeals 477.
Appellee brought this action against appellant in the circuit court of Adams county to recover damages for a personal injury suffered by her, and injury to and loss of her wearing apparel and personal effects, caused by a collision between an automobile in which appellee was traveling and a passenger bus belonging to appellant, alleged to have been caused by the negligence of the driver of the bus. There was a verdict and judgment in appellee's favor in the sum of nine hundred fifty dollars, from which judgment appellant prosecutes this appeal.
Appellee and four other ladies, all related, being sisters or cousins, lived in Natchez; they had been to New Orleans on a shopping trip and were returning from New Orleans to Natchez in a Buick sedan. Mrs. Sarah Heatherley, one of the party, was driving the car. The collision between appellant's passenger bus and the Buick sedan occurred near Reserve in the state of Louisiana. The highway on which the passenger bus and the Buick sedan were traveling runs north and south, and at the point where the collision took place it is straight for half a mile or more in each direction; it is not a paved highway, but is graveled and is about thirty feet wide; there had been recent rains and the highway was slick. The Buick sedan was traveling north, and the passenger bus south. The passenger bus was thirty feet long, about seven feet wide, and weighed something like sixteen thousand pounds, and had double wheels. The result of the collision was that appellee suffered personal injuries and had to pay hospital and doctors' bills, and certain wearing apparel and personal effects carried by her in her suit case were destroyed in part and damaged in part.
Appellee charged in her declaration, in substance, that the collision between the bus and the Buick sedan, and the resulting injury and damage was caused by the bus being operated at an excessive and dangerous rate of speed, in view of the condition of the highway, which was wet and slippery at the time. That the driver of the bus was negligent in failing to keep a lookout for objects on the highway, and failing to have the bus under control. That the driver of the bus, instead of keeping on his right-hand side of the highway, got over on the left-hand side, resulting in the collision. That the driver of the bus was operating it in such a careless and negligent manner as to lose control of it. That the bus was operated in such a negligent manner as to cause it to skid into the car in which appellee was riding. That the bus was being operated in violation of the statutes of Louisiana.
The principal ground assigned and argued by appellant for reversal of the judgment is that under the evidence it was entitled to a directed verdict. To sustain that position appellant contends that the undisputed physical facts show that the collision between the bus and the car took place without any fault on the part of the driver of the bus.
Appellee and the four ladies with whom she was riding in the Buick sedan, and one Reine, testified that they saw the bus coming down the highway, going south, approaching them as they were going north, Reine being south of the place where the collision occurred. That when they first observed the bus it was about three hundred feet north of the Buick sedan. That the highway was graveled and wet and slippery. That the bus was running at a high rate of speed and was zigzagging or swaying back and forth from one side of the road to the other. Appellee and the other four ladies in the car with her testified that when they saw the bus approaching them in that manner, and when it was about three hundred feet north of them, they immediately pulled the Buick sedan over to their extreme right-hand side of the road near the ditch, as near as they could get to it, and brought the car to a stop. That when their car stopped the bus was still about a city block away from them, but coming very rapidly, "zigzagging or skidding" back and forth across the road. That the bus was first on one side of the road and then on the other, and just before it reached their car it was headed directly towards it, then the driver swerved the bus to his right-hand side of the road, which caused its rear to skid over on the other side of the road and strike the Buick sedan. That the impact tore off the running board of the Buick sedan and struck its rear door and rear fender. That the rear wheels of the Buick went into the ditch on the side of the road where it was standing and the front wheels remained on the highway, and the wheels on the right-hand side of the bus went into the ditch on the other side of the highway. The testimony of the appellee and her four companions was corroborated by the witness Reine.
Five witnesses for appellant, four of whom were disinterested, gave testimony which, if true, exonerated the driver of the bus from any negligence in its operation. In other words, there was a square conflict between the testimony of the witnesses for the respective parties.
Certain physical facts, however, are undisputed, which are: Immediately after the collision the rear wheels of the Buick car were found in the ditch on its right-hand side of the road and its front wheels up on the road, and the right-hand wheels of the bus were in or near the ditch on its side of the road. The fender of the Buick car on its left-hand side was mashed in or torn off, and the rear door on that side had been struck and was damaged. The front fender of the bus' left-hand rear wheel was damaged, showing that it had struck the Buick car, but there was no indication whatever that any part of the bus back of its left-hand rear fender and wheel had come in contact with the Buick car. In other words, the physical facts showed, so far as concerned the bus, that the only part of it that came in contact with the Buick car was the front part of its left-hand fender.
Appellant argues that those physical facts demonstrate that the collision between the bus and the car could not have occurred in the manner testified to by appellee and her four companions, and the witness Reine. The ground they base that contention on is that if the collision had occurred as testified to by appellee and her witnesses, the left-hand rear end of the bus, back of the rear fender on that side, would have struck the Buick car. As stated, there was no evidence tending to show that that had occurred.
The trouble with appellant's position in that respect is that it loses sight entirely of what might reasonably have happened as the result of the rebound when the bus came in contact with the car. To illustrate, according to appellee's testimony the Buick car was at a standstill, the bus was coming down the slippery gravel road swerving from side to side: when it reached the Buick car it was in such position as that the fender to its left-hand rear wheel struck and tore off the left-hand fender to the Buick car and struck its left-hand rear door. The rebound might have been of sufficient force to throw the rear of the Buick and the rear of the bus so far apart that when the bus passed the Buick the left-hand rear of it is was too far away to strike the car again. We think it is not only possible but probable that the collision happened in that manner. It is not unreasonable that such was the case. The movements of two automobiles after colliding, where both, or only one of them, are traveling at a high rate of speed, are highly problematical. Experience shows that often they cannot be accounted for.
We are of the opinion that the court committed no error in refusing to direct a verdict for appellant.
We notice none of the other errors assigned and argued, for the reason that we think they are manifestly without merit and do not call for a discussion by the court.
Affirmed.
The testimony in behalf of plaintiff averred that the Buick sedan had been brought to a stop on the right-hand side of the road, and was in a position straight with the course of the road when the collision occurred. This testimony was given by four interested witnesses, each having suits growing out of the same accident, and by a young man who was traveling some distance, in the rear, and whose testimony was discredited from more than one angle. The only other witness introduced by plaintiff failed to sustain the theory and assertions of plaintiff. Five disinterested witnesses, four of whom were passengers on the bus and one a party who was traveling in a car following the bus, testified in behalf of defendants that the Buick sedan did not come to a stop, but was traveling in the center of the road without any slackening of speed, and that, just before the point was reached where the bus was traveling, the Buick sedan was turned quickly to the right, and that the bus driver, seeing the near approach of the sedan, the latter traveling, as stated, in the center of the road, then turned the bus to the right. That the actions of the two drivers in thus turning each to his right caused the center and rear of the sedan to swing against the front of the rear fender of the bus, and this in turn damaged the baggage on the running board of the sedan and the rear part of the sedan, and threw the rear of the sedan into the ditch, injuring the passengers in the smaller car. The witnesses for defendant immediately after the accident looked over the signs of the tracks of the two vehicles, and these tracks, the facts of which are not seriously disputed, corroborate the statements of the defendant's witnesses.
It is undisputed that the front fenders and the front part of the Buick sedan were not touched. It is undisputed that the only signs of impact with the sedan were back of the front part, and along the running board and on the rear door and rear fenders. It is undisputed that the rear part of the rear fenders of the bus were untouched, and that no part of the bus in the rear of the rear wheels was touched. The only place where the bus was hit was on the front part of the fender of the rear wheel on the left-hand side. Thus it is demonstrated, by the undisputed physical facts, that the Buick sedan was not, as plaintiff's witnesses aver, standing still on the right-hand side of the road in a position straight with the course of the road, and that while in this position the rear of the bus skidded into the sedan. For if these assertions were true, then the physical signs would, upon a certainty, have shown one or the other of the two following results: Either (1) the bus would have struck the front of the Buick sedan, which as stated, is undisputed that it did not; or (2) the back part of the rear fender of the bus and the back part of the body of the bus would have shown signs of injury, and, as stated, the testimony is undisputed that the only sign of injury to the bus was on the front of the rear fender of the bus.
Here is the exact theory and testimony in behalf of plaintiff: That the Buick sedan had stopped on the right-hand side of the road with the sedan straight with the course of the road; that the bus was swaying from side to side in the road, and that when it reached the point where the sedan was standing the driver turned suddenly to his right, causing the rear end of the bus to swing around and strike the sedan on the running board, the rear door, and the rear fenders of the sedan. If this were true, then inescapably the rear part of the rear fenders of the bus, and the rear part of the body of the bus would have shown signs of injury; but it is undisputed that no such physical signs appeared on the bus. And this injury to the bus would have been the inevitable result of the first contact with the sedan. The majority opinion seeks to write around these physical facts by omitting any reference to the fact that the front part of the Buick sedan was not struck, and then to avoid the fact that the rear of the bus showed no injury introduces an argument about a rebound. There is no evidence in the record, nor any suggestion therein of any rebound, nor was any such explanation attempted in the briefs. In fact, appellees make no serious attempt to answer the physical demonstration above mentioned, but rely generally on the general effect of the verdict of the jury.
Courts go a long way to support verdicts of juries, it is true; but they should stop short of doing so by conjectures or by looking for possibilities, or by saying that what happened is problematical, or that the happenings cannot be accounted for, because that course of adjudication is to reverse the rule, and place the burden of proof on the defendant, whereas the law requires a plaintiff to make out a case; and it is not sufficient in doing this that the proof is left in a conjectural or problematical condition or one in which it is said that the happening cannot be accounted for; and this can no more be properly done in support of the verdict of a jury on appeal than it could be originally, in arriving at a verdict. Probability is the rule of adjudication in civil cases, and, when the undisputed physical facts demonstrate what the probabilities are, courts should follow these facts. The undisputed physical facts here demonstrate that the version given by the disinterested witnesses for the defendant is the true version, the only one consistent with the reasonable probabilities, and these physical facts are as clear as if there were photographs of them before us. Of the force of such acts this court said in Mobile Ohio R. Co. v. Bryant, 159 Miss. 528, 132 So. 539, 541: "These photographs disclose the facts to us by way of demonstration, and we apply the law to the facts thus demonstrated — any verdict to the contrary notwithstanding." When the physical facts substantially amount to demonstration, the verdict to the contrary thereof will be reversed. Flowers v. Stringer, 152 Miss. 897, 120 So. 198.
Inasmuch as the undisputed physical facts demonstrate that the accident did not happen as claimed by plaintiff, but happened as shown by the five disinterested witnesses who testified for the defendant, and since that evidence discloses contributory negligence on the part of plaintiff, which is a complete defense under the law of Louisiana, wherein the accident occurred, the judgment should be reversed.