Opinion
No. 41537.
October 10, 1960.
1. Motor vehicles — operation on highway — duty of driver.
The driver of a motor vehicle on a public highway must keep his vehicle constantly under control and he must always be on alert for other persons and property on the highway, and every driver must at all times operate his vehicle and control his travel upon highway in manner that is reasonable and prudent in view of circumstances and condition of highway with which driver of such vehicle is confronted. Sec. 8188(a), Code 1942.
2. Motor vehicles — operation on highway — following too closely.
The driver of a motor vehicle on a public highway must not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway. Sec. 8188(a), Code 1942.
3. Motor vehicles — collision — car ahead struck by following motorist — where ice condition on highway a known factor — instructions — erroneous.
In action for injuries sustained by driver of automobile which was struck in rear by defendant's following automobile, wherein defendant admitted that he knew that pavement was unusually slippery because of hail thereon and that he had full knowledge of condition and situation which then existed upon highway, instruction that if jury believed that it was hailing and that pavement was unusually slippery and that condition could not have been foreseen by reasonably prudent person using ordinary care, defendant was free from negligence, was not warranted by proof.
4. Motor vehicles — negligence — collision — car ahead struck by following motorist — where ice condition on highway a known factor — submitting to jury question whether defendant had been free from negligence error — peremptory instruction for plaintiff proper.
Where plaintiff and defendant were traveling in same direction in hailstorm and defendant's automobile collided with rear of plaintiff's automobile and defendant admitted that pavement was unusually slippery because of hail thereon and that he had full knowledge of condition and situation which then existed upon highway and that he slowed down very little, defendant practically admitted liability and it was error to submit to jury question whether defendant had been free from negligence and plaintiff should have had a peremptory instruction against defendant.
Headnotes as approved by Hall, P.J.
APPEAL from the Circuit Court of Forrest County; STANTON A. HALL, Judge.
Edward J. Currie, Sr. and Jr., Hattiesburg, for appellant.
I. Cited and discussed the following authorities: Anderson v. Bradley, 208 Ala. 302, 94 So. 287; Ardoin v. Robinson (La.), 176 So. 228; Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Birmingham, etc. v. Baker (Ala.), 122 So. 316; Bradshaw v. Stieffel (Miss.), 92 So.2d 565; Butigan v. Yellow Cab Co., 49 Cal.2d 652, 320 P.2d 500, 65 A.L.R. 2d 1; Cebulak v. Lewis, 320 Mich. 710, 32 N.W.2d 21, 5 A.L.R. 2d 186; Cochran v. Peeler, 209 Miss. 394, 47 So.2d 806; Coker v. Five-Two Taxi Service, 211 Miss. 820, 52 So.2d 356; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Crow v. Alexi (La.), 55 So.2d 16; Deposit Guaranty Bank, etc. v. Nelson, 212 Miss. 335, 54 So.2d 476; F.B. Walker Sons v. Rose, 223 Miss. 494, 78 So.2d 592; Field v. Maryland Casualty Co. (La.), 178 So. 201; Gosma v. Adams (Fla.), 135 So. 806; Goutierrez v. Travelers, etc. (La.), 107 So.2d 847; Greer v. Ware (La.), 187 So. 842; Henican v. Woodman, 1 La. App. 281; Jones v. Dixie Greyhound Lines, 211 Miss. 34, 50 So.2d 902; Langford v. San Diego, etc., 174 Cal. 729, 164 P. 398; McClasky Bros. v. Hood Milling Co., 119 Miss. 92, 80 So. 492; Meeks v. McBeath (Miss.), 95 So.2d 791; Overstreet v. Ober, 14 La. App. 633, 130 So. 648; Roberson v. Rodriquez (La.), 186 So. 853; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Stevens v. Dean, 6 La. App. 637; Swedman v. Standard Oil, etc. (La.), 125 So. 481; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Ward v. Mitchell, 216 Miss. 379, 62 So.2d 388; West v. Aetna Ins. Co., 208 Miss. 776, 45 So.2d 585; Williams, etc. v. Hood, 237 Miss. 355, 114 So.2d 854; 5 Am. Jur., Secs. 280, 281 pp. 656, 657, 658; 15 Am. Jur., Damages, Sec. 201; 25 C.J.S., Sec. 99 p. 647; 2 Blashfield Cyc. of Automobile Law Practice (perm. ed.), Sec. 931 pp. 107-112; 9c Blashfield Cyc. of Automobile Law Practice (perm. ed.), Secs. 6196, 6237 pp. 306 et seq., 413.
M.M. Roberts, Hattiesburg, for appellee.
I. Cited and discussed the following authorities: American Creosote Works v. Rose Bros., 211 Miss. 173, 51 So.2d 220; Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Breezley v. Spiva (Mo.), 313 S.W.2d 691; Byrd v. Elliott (La.), 108 So.2d 248; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Deposit Guaranty Bank Trust Co. v. Nelson, 212 Miss. 335, 54 So.2d 476; F.B. Walker Sons v. Rose, 223 Miss. 494, 78 So.2d 592; J.M. Griffin Sons, Inc. v. Newton Butane Gas Oil Co., 210 Miss. 797, 50 So.2d 370; Johns-Manville Products Corp. v. McClure, 209 Miss. 240, 46 So.2d 538; McClaskey Bros. v. Hood Milling Co., 119 Miss. 92, 80 So. 492; Meeks v. McBeath, 132 Miss. 93, 95 So.2d 791; Merchants Co. v. Tracy, 175 Miss. 49, 166 So. 340; Mooneyhan v. Benedict (Texas), 284 S.W.2d 741; Scott v. Fowler (Miss.), 86 So.2d 477; Sternberg Dredging Co. v. Screws, 175 Miss. 383, 166 So. 754; Stevens v. Duke (Fla.), 42 So.2d 361; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; West v. Aetna Ins. Co. of Hartford, Conn., 208 Miss. 766, 45 So.2d 585; Wheat v. Tech Lines, 181 Miss. 408, 179 So. 553; Williams v. Hood, 237 Miss. 355, 114 So.2d 854; Young v. Davis, 174 Miss. 435, 164 So. 586; Zwilling v. Harrison (N.Y.), 199 N.E. 761; Secs. 8178, 8188, Code 1942; Alexander's Mississippi Jury Instructions, Chap. 8.
A word of explanation is in order at the outset as to why this case originated in Leflore County and was tried in Forrest County. The defendant, Donald M. Young, was employed in Leflore County when the accident in question occurred but his employer later transferred him to Forrest County, where he was living when the suit originated.
Mr. Young testified as an adverse witness on cross-examination and admitted that on the occasion in question he had stopped under a viaduct in a severe hailstorm and remained there four or five minutes. Mrs. Klumok was driving her automobile and stopped under the same viaduct about four or five car lengths ahead of Young. Mr. Young admitted that her rear lights gave him notice, after they left the viaduct, that she was slowing down. He also admitted that the road was very slippery and that he knew it and that he slowed very little and with the road covered with hail, he struck the back of Mrs. Klumok's automobile and he admitted that he struck her with tremendous force and that at the time it took him four or five car lengths to stop. Both automobiles were traveling south and several cars were coming from the opposite direction and he struck Mrs. Klumok's car, according to his testimony, hard enough to totally destroy his automobile, a Buick car.
It is not seriously contended that Mrs. Klumok did not sustain considerable injuries. She was first in South Sunflower Hospital and was later in Campbell's Clinic in Memphis where she was put in traction. She had to go to Memphis three times and was not only severely injured but was put to considerable expense in repairing her car as well as a considerable amount for automobile rent while she was undertaking to have her car repaired and also a considerable expense for extra help in her store to keep it going at a time when she was unable to be there.
(Hn 1) The appellee, defendant, claimed in his answer that the hail and rain quickly changed the conditions on the highway and that the road became a slippery road during the hailstorm and that it was the weather conditions and no fault or failure of the defendant that the accident occurred and that the accident was purely accidental and may be and should be classed as a pure accident. He did not allege or claim that the plaintiff was guilty of any negligence, contributory or otherwise. In numerous cases we have held that the driver of a motor vehicle upon a public highway must keep his vehicle constantly under control and that he must be always on the alert for other persons and property on the highway, and that every such driver of a motor vehicle upon a public highway must at all times operate his vehicle and control its travel upon the highway in a manner that is reasonable and prudent in view of the circumstances surrounding and the condition of the highway with which the driver of such vehicle is confronted. (Hn 2) In fact, Sec. 8188(a), of the recompiled Code of 1942 provides that: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."
(Hn 3) At the trial the jury was instructed for the defendant that if they should believe from a preponderance of the testimony that on the occasion of the accident in question it was hailing and there was resulting ice on the pavement and if they further believed from a preponderance of the testimony that the pavement was made unusually slippery because thereof and that this condition and situation could not have been foreseen by a reasonably prudent person using ordinary care for his own safety and for the safety of others on the highway at the time and that the defendant was free from negligence then it is their sworn duty to find for the defendant. This instruction was not warranted by the proof in the case nor by any testimony but was contrary to Mr. Young's own admissions. In fact he admitted that he knew that the pavement was unusually slippery because of the hail thereon. He admitted that he had full knowledge of the condition and situation which then and there existed upon the highway.
It was also error for the trial court to submit to the jury the question of whether the appellee "was free from negligence." According to the undisputed testimony he was not free from negligence and the collision was not "a pure accident", as outlined in the defendant's instruction. There is no semblance of pure accident in this case and according to Mr. Young's own testimony the collision was not an accident but was the result of his own negligence in following Mrs. Klumok's car too closely.
(Hn 4) From what we have said it is evident that the verdict against Mrs. Klumok is not supported by any evidence and should not be permitted to stand. But, on the contrary, Mr. Young practically admitted liability, swore himself into the situation where the plaintiff should have had a peremptory instruction against him, and the judgment of the lower court will, therefore, be reversed and a judgment on liability entered here in her favor and the cause remanded to the lower court for assessment of her damages.
Reversed, judgment here for appellant, and remanded for trial on the issue of damages.
Lee, Holmes, Ethridge and McElroy, JJ., concur.