Opinion
No. 31488.
December 17, 1934. Suggestion of Error Overruled January 28, 1935.
1. EVIDENCE.
Court may judicially notice those prominent facts regarding automobile and trucks which are so distinctly capable of intelligent observation as to be safely regarded as certain and indisputable facts to all persons of average understanding and with average opportunities of observation.
2. EVIDENCE.
Power to take judicial notice is to be exercised with caution so that fact to be noticed comes safely within allowable limitations, and doubts upon the subject must be resolved in the negative.
3. EVIDENCE.
Court will incline against taking judicial notice of facts in mechanical realm which had better be presented by expert testimony.
4. EVIDENCE.
Court would judicially notice that automobiles and trucks are guided by steering wheels, that vehicle will turn in direction in which steering wheel is turned, including fact that there is such mechanical connection between steering wheel and front road wheels that latter are compelled to respond to former.
5. EVIDENCE.
Court would not judicially notice the amount of allowable play in steering wheel of truck, such matter being for proof by experienced drivers and mechanics.
6. MASTER AND SERVANT.
In action for death of driver of oil truck which left road and turned over, evidence of passenger that steering wheel had play of from three-quarters to one full turn and that it was hard to hold truck in road held sufficient to carry to jury issue whether steering wheel in such condition was reasonably safe.
APPEAL from the Circuit Court of Madison County.
Howie Howie, of Jackson, for appellant.
The defects in this truck, as proven by the testimony, were such that with reasonable care the principal and agent could have known that the truck was not reasonably safe. It is a matter of common knowledge that an automobile truck to be safe must have such a steering wheel as that the driver can guide the truck along the way it is sought to be driven.
This court has held in the case of Gulf Refining Company v. Nation, 145 So. 327, 167 Miss. 315, also in the case of Standard Oil Co. v. Franks, 149 So. 798, which was exactly the same situation as this case, that both the oil company and its resident agent are jointly and severally liable for injuries received by an employee.
Sawmill Construction Co. v. Bright, Bright v. Finkbine Lbr. Co., 77 So. 316, 116 Miss. 491.
It is the duty of the master to furnish his servant with safe tools, appliances and instrumentalities with which to perform his work.
Southern Ry. Co. v. Wiley, 41 So. 511, 88 Miss. 825; Kneals v. Lopez Dukate, 46 So. 715, 93 Miss. 201; Murray v. Natchez Drug Co., 56 So. 330, 100 Miss. 360; Brooks v. DeSoto Oil Co., 57 So. 229, 100 Miss. 849; St. Louis S.F.R. Co. v. Guin, 68 So. 78, 109 Miss. 187; Edwards v. Haynes-Walker Lbr. Co., 74 So. 284, 113 Miss. 378; Sea Food Co. v. Alves, 77 So. 857, 117 Miss. 1; Benton v. Finkbine Lbr. Co., 79 So. 346, 118 Miss. 558; Central Lbr. Co. v. Porter, 103 So. 506, 139 Miss. 66; Wilbe Lbr. Co. v. Calhoun, 140 So. 680, 163 Miss. 80; Masonite Corporation v. Lochridge, 140 So. 223, 163 Miss. 364; 39 C.J., sec. 412, pp. 285-6; Miss. Utilities Co. v. Smith, 145 So. 896, 166 Miss. 105; Planters' Oil Mill v. Wiley, 122 So. 365, 154 Miss. 113; Hercules Powder Co. v. Tyrone, 124 So. 475, 155 Miss. 75.
Watkins Eager, of Jackson, and W.H. and Robert H. Powell, of Canton, for appellees.
The evidence fails to show any connection between the Louisiana Oil Corporation and Luckett.
We have no criticism to offer with respect to cases cited by appellant's counsel, but simply say that all of the cases so cited go to the question of what constitutes the relation of master and servant under a given state of fact, but, of course, none of those cases are sufficient to sustain counsel's contention when applied to the facts found in this record.
The evidence is insufficient to support the allegations of the declaration that the truck was not reasonably safe for use, and furthermore there is no evidence to show that any alleged defect of the truck in any wise proximately caused or contributed to the accident.
Burnside v. Gulf Refining Co., 166 Miss. 460, 470, 148 So. 219; Hercules Powder Company v. Calcote, 161 Miss. 860, 867, 138 So. 583.
Nothing can be deemed the proximate cause of an injury unless, had it not happened, the injury would not have occurred.
Illinois Central Railroad Co. v. Wright, 135 Miss. 444, 100 So. 1; 1 Thompson on Negligence, sec. 56; 22 R.C.L., pp. 110, 113; Gulf Refining Company v. Miller, 150 Miss. 68, 69, 116 So. 295; Hattiesburg Chero-Cola Bottling Co. v. Price, 141 Miss. 892, 106 So. 771.
The mere fact that there has been negligence in the operation of an automobile does not of itself give rise to liability for an injury which the automobile has caused, but in order to fix liability, it must be shown that such negligence was the proximate cause of the injury.
42 C.J., p. 886, par. 587; Goodyear Yellow Pine Co. v. Sumrall, 153 Miss. 350, 120 So. 734.
Argued orally by J.H. Howie, for appellant, and by W.H. Powell, for appellee.
Appellant's decedent was an experienced and competent truck driver, and had for some time been in the employ of appellees as a driver of one of their oil and gasoline delivery trucks. On the afternoon of the day in question he was on his way towards the delivery of an order of gasoline, traveling on a graveled state highway, and apparently at a moderate rate of speed, when having passed over a hill and started down a slight grade, the truck began to veer or zigzag from side to side of the road, and after having proceeded in this manner for about thirty yards, the truck left the road and turned over, pinning the driver in the wreckage of the cab, and the truck having caught fire, appellant's decedent was burned to death. The evidence discloses no suggestion that the driver was not in perfect health, none that he was intoxicated, and it was shown that there was nothing wrong with the tires.
Appellant, as administratrix, instituted suit for the death, alleging that the proximate cause thereof was the negligence of decedent's employers in failing to take reasonable care to furnish decedent with a reasonably safe truck. The truck was seriously out of order in several particulars, according to the allegations of the plaintiff, but the proof was imperfect and insufficient, so far as the present record is concerned, except in respect to the steering wheel, as to which the proof is that this wheel was loose to the extent that it had a play of from three-quarters to an entire turn thereof, and that this condition had existed for a period of time amply sufficient for a reasonable inspection to have been due to have been made; but even as to this item and as to the ultimate issue whether a steering wheel with a play of as much as stated is not reasonably safe, appellant relied upon judicial knowledge to be taken by the court, and came very near making no proof at all upon that important question. The court granted a peremptory instruction for the defendants.
The facts in regard to automobiles and automobile trucks which may be judicially noticed are those which are so prominent, and which, therefore, are so distinctly capable of intelligent observation, that they can safely be regarded as certain and indisputable facts, known as such to all persons of average understanding and who have had the opportunities of the average person to make observation. Williams v. Lumpkin, 169 Miss. 146, 151, 152 So. 842. But the courts are in general agreement that the power to take judicial notice is to be exercised with caution and with particular care to see to it that the fact to be noticed comes safely within the allowable limitations, and that doubts upon the subject must be resolved in the negative. 23 C.J., p. 173. For that reason, courts will incline against taking judicial notice of those facts in the realm of mechanics which had better be presented by the testimony of those who have made special observation or who have had special experience, or who as experts can be more safely trusted as to the truth of the particular fact than to rely upon an assumed knowledge which might actually be mistaken.
Accordingly, we may take judicial knowledge of the fact that automobiles and automobile trucks are guided by steering wheels and that the vehicle will turn in the direction towards which the steering wheel is turned, which includes, of course, the further fact that there is such a mechanical connection between the steering wheel and the front road wheels that the latter are compelled to respond to the former. These are prominent facts that any observant person could not fail to see in the course of his daily life. But as to how much play there may be in a steering wheel is not a matter which may safely be brought within the rule of judicial notice as if common knowledge; and, we think, not even when the play is as much as three-quarters to an entire turn of the steering wheel, shown in this case. If we could be required to take judicial notice in respect to the degree of allowable play in a steering wheel, we might, with equal reason, be called upon to notice the further fact that the standard automobiles in general use to-day have simple adjustment devices for the elimination of that play and which might fall within the duty of the driver of a truck to attend to himself, similarly to his duty to repair a tire on the road.
These are matters to be proved by experienced drivers and mechanics. But it seems to us that we can safely say that when the proof shows, as in this case, that there was a play in the steering wheel of three-quarters to an entire turn of the wheel, this is so sufficiently suggestive of danger as to take that issue to the jury when, in addition, there is found in the record further and direct proof upon the issue that such a play is excessive to the extent to make the machine hard to handle on that account. And there is such proof in this record. A witness for the plaintiff testified that he rode in this truck on Thursday before the wreck on Tuesday, that the steering wheel had "almost a full round of play in it," and in response to the question, did it steer badly, he answered that "it was a pretty hard job to hold it in the road." We think this was sufficient to escape a peremptory instruction, although it would have been fairer to judge and jury more fully and explicitly to have developed that issue by experienced truck drivers and expert mechanics of whom there are many such in every courthouse town in the state.
Reversed and remanded.