Opinion
No. 36225.
November 25, 1946.
1. AUTOMOBILES.
Evidence established that proximate cause of collision between plaintiff's ambulance and defendant's automobile was fact that defendant, after stopping at edge of paved highway, again started his automobile and drove into side of plaintiff's ambulance as it was passing in front of him, and that plaintiff was not guilty of contributory negligence in failing to keep a constant lookout as he approached scene of the accident.
2. TRIAL.
Plaintiff's testimony in regard to itemized repair bill for fixing his ambulance after collision with defendant's automobile, in absence of any objection thereto, was competent as proof of damages, notwithstanding that plaintiff admitted on cross-examination that he was going by what mechanic told him as to costs of parts and for labor in making the repairs.
APPEAL from the circuit court of Montgomery county, HON. JOHN F. ALLEN, Judge.
J.W. Conger, of Winona, for appellant.
A driver of an automobile must be alert for other vehicles on highway.
Graves v. Johnson, 179 Miss. 465, 176 So. 256.
A motorist should exercise care and diligence when proceeding upon a much traveled crossing and should stop and look before entering intersection with through highway though he may have stopped at a stop sign distant from the intersection.
Avent v. Tucker, 188 Miss. 207, 194 So. 596.
The giving of the instruction that Trewolla was guilty of contributory negligence was error.
Dixon v. Breland, 192 Miss. 335, 6 So.2d 122; Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487; Graves v. Johnson, supra.
Wilful and wanton negligence, however, goes a step further and implies a positive disregard of the rules of diligence and a reckless heedlessness of consequences, lacking only in criminal character the element of direct intent and premeditation, and driving at night through the fog, and driving on a city street when mist, rain, and blinding headlights make vision impossible, is gross negligence.
Henderson v. State, 199 Miss. 629, 25 So.2d 133; Ballos v. Natural, 93 Cal.App. 601; Gannon v. Kiel, 252 Ill. App. 550; Babbitt Motor Vehicle Law, p. 1013.
The peremptory instruction should have been granted. If it be apparent to the court that there will be a miscarriage of justice, then the court will not let a verdict of a jury stand which is either excessive or inadequate.
Chapman v. Powers, 150 Miss. 687, 116 So. 609.
Means Johnston, of Greenwood, for appellee.
The attorney for appellant contends that the lower court erred in the following particulars: (1) In not granting to plaintiff his requested peremptory instruction; (2) in granting to appellee instruction No. 1, on contributory negligence; and (3) in overruling the motion of plaintiff for a directed verdict. We contend that under all of the facts and circumstances of this case both appellee and appellant were guilty of negligence, and that the negligence of appellee contributed to the accident and injuries complained of, and that the evidence and conflict in evidence presented a case for the jury.
The driver of an automobile must keep his machine constantly under control; he must continue on the alert for pedestrians and others using the streets and must anticipate their presence. To assume the way is clear is not his right. The fact that he was unaware of the presence of others in no way extenuates conduct which would have been wantonly reckless, had he known that another person or vehicle was crossing his pathway.
Ulmer v. Pistole, 115 Miss. 485, 76 So. 522.
A party seeing another approaching and in a position where, if such position is not changed, danger would ensue, cannot sit silently and rely upon the other party to do the things required to avoid the accident. The duty to avoid accidents and collisions is mutual and reciprocal generally, and each party should do what the situation reasonably requires of him, and not rely upon the other party doing everything that is necessary to avoid injury.
Aycock v. Burnett, 157 Miss. 510, 128 So. 100.
He must at all times drive his car at a reasonable rate of speed in view of the conditions with which he is confronted. He has no right to assume the street is clear. He has no right to assume that all other persons are obeying the traffic laws.
Terry v. Smylie, 161 Miss. 31, 133 So. 662.
See also Snyder v. Campbell, 145 Miss. 287, 110 So. 678, 49 A.L.R. 1402; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Porter v. Nesmith, 124 Miss. 517, 87 So. 5; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Frazier v. Hull, 157 Miss. 303, 127 So. 775; Jones v. Carter, 192 Miss. 603, 7 So.2d 519; Myers v. Tims, 161 Miss. 872, 138 So. 578; Gough v. Harrington et ux., 163 Miss. 393, 141 So. 280; Whatley v. Boolas, 180 Miss. 372, 177 So. 1; Coca-Cola Bottling Works of Greenwood v. Hand, 186 Miss. 893, 191 So. 674.
All questions of negligence and contributory negligence shall be for the jury.
Davis v. McCullers, 126 Miss. 521, 89 So. 158; Waterford Lumber Co. v. Jacobs, 132 Miss. 638, 97 So. 187; Priestly v. Hays, 147 Miss. 843, 112 So. 788; Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356; St. Louis S.F.R. Co. v. Nichols, 161 Miss. 795, 138 So. 364; Watson v. Holiman, 169 Miss. 585, 153 So. 669; Code of 1942, Sec. 1455.
Argued orally by J.W. Conger, for appellant.
The appellant, W.D. Trewolla, an undertaker, brought this suit to recover the sum of $163.72, together with the legal rate of interest thereon from March 11, 1943, as an expense and damage caused by the appellee, Barthall Garrett, to the Packard ambulance or hearse of the appellant as a result of a collision on the public highway.
The trial court overruled the plaintiff's request for a directed verdict in his favor and granted an instruction to the defendant on the alleged contributory negligence of the plaintiff. This is all assigned as error since the trial resulted in a verdict for the sum of only $50 in favor of the plaintiff.
The proof discloses that while the plaintiff was going north on U.S. paved Highway 51, and driving at a proper rate of speed, the defendant approached the highway from the east on a side road, brought his automobile to a stop as he approached the pavement and then in a grossly negligent manner drove onto the pavement and collided with the ambulance or hearse of the plaintiff, due to the fact that the glass in the window of his automobile was so covered with ice, snow and sleet that he failed to see the approaching ambulance to his left on the paved highway. He could only see to the west, straight ahead of him, through a small place from which he had scraped off the ice, snow and sleet on his windshield.
It is contended by the defendant that since the plaintiff could have seen the automobile approaching the highway, and failed to do so, he was guilty of contributory negligence in failing to keep a constant lookout as he approached the scene of the accident. However, if he had been looking at the automobile as it was approaching the paved highway, he would have seen what his companion in the ambulance or hearse saw and what the defendant admitted to be the fact, that the automobile then stopped and he would have been entitled to proceed up the paved highway. And since it is undisputed that the plaintiff sounded the horn on his ambulance or hearse within three hundred feet of the scene of the accident, he would have been entitled to assume if he had seen the automobile that it would remain stopped until he could pass.
In other words, it clearly appears from all the physical facts and circumstances, including the damage to the right front side of the ambulance or hearse, that the sole proximate cause of the accident was the fact that the defendant again started his automobile at the edge of the paved highway and drove into the side of the ambulance or hearse as it was passing in front of him. The defendant's version as to how the cars collided by the right end of the bumper of the ambulance striking the center of the bumper of the automobile while the latter was turning south, is wholly inconsistent with the physical facts as to the damage sustained by the ambulance or hearse If the defendant had brought the suit, then no judgment in his favor could be permitted to stand on account of the alleged negligence of the driver of the ambulance under the facts of this record. Of course, this fact alone may not necessarily be conclusive of the question here involved.
As to the proof of the damages the greater portion of the itemized repair bill was for parts which had to be supplied, the cost of the labor being only $24.50. The plaintiff carried the ambulance or hearse to the place suggested by the defendant to be repaired, and he testified that "I was there when he dis-assembled the car and saw the broken and bent parts," and further that the repairs were "for that particular wreck, yes, sir." And also that the same was necessary to repair the injuries done. It is true that the plaintiff admitted on cross examination that he was going by what the mechanic told him as to the cost of these parts and for the labor in making the repairs, but his testimony in that regard was not objected to, and was, therefore, competent under the decision of Citizens Bank v. Miller, 194 Miss. 557, 11 So.2d 457. Moreover, there was no substantial dispute as to the correctness of the charges for the said repairs, the defendant having testified that he did not examine the ambulance or hearse to ascertain the extent of the damage, but merely stated that he just walked around and looked at it to the extent that he saw the damage to the fender and hubcap and agreed to pay for that particular damage; that he did not agree to pay all the damage.
We are, therefore, of the opinion that the plaintiff was entitled to a directed verdict for the amount sued for, on the basis stated in the first paragraph of this opinion, and a judgment will be rendered here accordingly.
Reversed and judgment here for appellant.
Sydney Smith, C.J., did not participate in this decision.