Opinion
No. 29940.
Suggestion of Error Overruled, May 9, 1932.
1. AUTOMOBILES.
Instruction in action for death of pedestrian, struck from rear by defendant's automobile while walking on left side of street, that it was immaterial whether defendant was on such side held erroneous (Code 1930, section 5574).
2. AUTOMOBILES.
One driving automobile on left side of street was under duty to keep strict watch for pedestrians walking on such side with their backs to him (Code 1930, section 5574).
3. AUTOMOBILES.
It is automobile driver's duty to keep to right side of street, unless it is clear of others equally entitled to its use.
4. AUTOMOBILES.
Instruction that automobile driver was under no duty to sound horn to warn pedestrian, walking along left side of street, if he saw him so close to automobile that he had no time to do so, held erroneous (Code 1930, section 5572).
5. AUTOMOBILES.
It was duty of automobile driver on left side of street to give signals of his approach to pedestrian walking ahead of him on such side (Code 1930, section 5572).
APPEAL from circuit court of Jones county. HON.W.J. PACK, Judge.
J.M. Travis, of Meridian, and Max B. Reid, of Blytheville, Ark., for appellant.
The trial court erred in granting the following instruction for and on behalf of the appellee:
"The court instructs the jury for the defendant that the fact that the defendant may or may not have been on the defendant's left of the center of the road or street is not material and you cannot under your oaths return a verdict for the plaintiffs on this ground alone."
Sec. 5574, Code 1930; Westerfield v. Shell Petroleum Corporation et al., 138 So. 561.
A careful reading of the record in this case shows without any conflict that there was nothing to prevent the said appellee from driving his car on the right hand side of the center of the highway, and in no instance was he compelled in this case to operate his car on the left-hand side of the road for his own safety, and the doctrine of last chance is not involved in this lawsuit.
Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Crystal v. State, 147 Miss. 40, 112 So. 687.
The driver of a motor vehicle not turning to the right is liable for colliding with other vehicles on proper side of highway.
Clark v. Hughes, 134 Miss. 377, 99 So. 6.
This court from the above cases has definitely decided the question of liability where two motor vehicles, or other vehicles, meet on a public highway, that if they are operating said vehicle on the left-hand side of the road, they are liable. It appears to be just as sound a principle of law that if the law fixes the place for a pedestrian to walk, that is on the left hand side of the road, that a pedestrian is entitled to the free use and enjoyment of walking on the left-hand side of the side of the center of the road, and when a motor vehicle undertakes to pass a pedestrian, we contend that he should operate his car on the right-hand side of the center of the highway in passing the pedestrian walking in the same direction.
The court below erred in giving instruction to the defendant as follows:
"The court instructs the jury that the defendant was under no duty to sound his horn to warn the deceased if defendant saw deceased so close to the automobile that he had no time in which to do so. However, it was the duty of the defendant to use reasonable care to discover persons in the highway in time to warn them of his approach."
Sec. 5572, Code 1930.
The appellee owed to the deceased, Reid, in approaching him, a reasonable warning of his approach.
The record shows without any conflict that no warning, signal or whistle was sounded before the appellee struck the deceased, Reid.
The same general law applicable to the use of all vehicles on public highways applies to automobiles, the substance of which is that a driver must use that degree of care and caution which an ordinarily prudent person would exercise under the same circumstances. But this is not all. Recognizing in the motor vehicle an instrumentality equally as dangerous in many respects as the locomotive and trolley car, the law exacts additional precautions from operators. The failure to see a pedestrian in the street amounts to negligence.
2 R.C.L. 1184; Lauson v. Fon Du Lac, 141 Wis. 57, 123 N.W. 629, 135 Am. St. Rep. 30, 25 L.R.A. (N.S.) 40; 108 Am. St. Rep. 214, note; 4 Ann. Cas. 398, note; 13 Ann. Cas. 464, note; 1 L.R.A. (N.S.) 227, note; State v. Campbell, 82 Conn. 671, 74 A. 927, 135 Am. St. Rep. 293, 18 Ann. Cas. 236; Weil v. Kreutzer, 134 Ky. 563, 121 S.W. 471, 24 L.R.A. (N.S.) 557 and note; Minor v. Mapes, 102 Ark. 351, 144 S.W. 219, 39 L.R.A. (N.S.) 214; Minor v. Stevens, 65 Wn. 423, 118 P. 313, 42 L.R.A. (N.S.) 1178 and note; Snyder v. Campbell, 110 So. 678.
A pedestrian has a right in the absence of prohibition by statute or ordinance to cross a street at any point, either diagonally or directly, and is not restricted to the regular crossings, hence, the driver of an automobile owes him the duty of reasonable or ordinary care in the circumstances.
14 A.L.R. 1184; Stringer v. Frost, 116 Ind. 477, 2 L.R.A. 614; Wine v. Jones, 183 Iowa, 1166, 162 N.W. 196; 168 N.W. 318; Seifert v. Schabile, 81 Kans. 323, 105 P. 529; Bolstad v. Armour Co., 124 Minn. 155, 144 N.W. 462; Anderson v. Wood, 264 Pa. 98, 107 A. 658; 14 A.L.R. 1183; Simons v. Gaynor, 89 Ind. 165; Craft v. Stone (1919), 124 N.E. 473.
W.S. Welch and Ellis B. Cooper, both of Laurel, for appellee.
Subject to the fundamental rule that he must exercise reasonable care for the safety of others, and in the absence of some express restriction, of his right in this respect, an automobile is free to travel along any portion of the highway which he chooses, and may drive on his own left-hand side of the road when the road is open and other vehicles are not occupying or approaching on that side of the road, and such use of the highway does not unreasonably infringe on the rights of pedestrians without being chargeable with negligence as matter of law because of the mere fact of his position on the highway.
Flynt v. Fondren, 84 So. 188, 122 Miss. 248; 42 C.J., p. 903, sec. 612.
We are not contending in this case that it is not negligence to drive on the left side of the road with a car approaching. We are simply contending that it is not negligence per se for a driver to occupy the left-hand side of the road when he is not passing a car going in his direction or the opposite direction or in passing a person. The court held in the Flynt case, supra, that Flynt's conduct was negligence even though he had the right to drive on the left-hand side if he wanted to, because of the automobile that was approaching him.
The instruction complained of by appellant simply tells the jury that being on the left-hand side of the road was not material in this case and that the jury on this "ground alone" could not return a verdict for the appellants. In other words, the fact that he was on the left-hand side of the road did not in itself and by itself constitute negligence. But coupled with the failure to use due or reasonable care in the operation of the automobile it might be a circumstance which the jury might consider. We insist that this is in direct and exact accord with the holding of this court and the other courts.
Appellants say that the deceased had the right to walk on the left-hand side of the street or highway. That is very true, but he was not walking on that side. The undisputed evidence is that he was crossing the street.
There is no evidence in this case that the appellee was driving on the left-hand side of the road, but that all of the evidence indicates that he was in the center of the road. And even if we concede that the appellants are correct in their statement of the law that being on the left side of the road or street is in itself negligence, still the instruction now under consideration would be harmless error for the reason that there is no proof which sustains substantially any charge that he was there.
The instruction under the facts in this case was correct but if incorrect, it constitutes no such error as would warrant the reversal of this cause. This instruction did not remove the question of negligence on account of being on the left side of the road entirely from the jury. It simply told the jury that this fact alone did not impose liability.
Another instruction complained of by the appellant tells the jury that if the appellee did not see the deceased until he was so close to the automobile that appellee had no time in which to sound the horn, the appellee was under no duty to sound the horn. This is nothing but a statement of a common sense rule. To have required appellee to sound a horn when he had no time to do so would require of appellee an impossibility. To require the sounding of a horn when the parties are on the verge of immediate collision would mean that the driver of the motor vehicle would have to forego a movement of the car to prevent the collision, if possible, in order that he might sound the horn. This, even if not contrary to common sense, would certainly be bad policy for the driver of the car in seeking to sound the horn to have his attention taken from the manipulation of the car as well as his hands and all chances of averting the collision would be gone.
The law expressly holds that in the absence of restrictions, it is not negligence per se to drive on the left-hand side of the road.
Meridian Coca-Cola Company v. Watson, 134 So. 824.
There is a duty on the part of one crossing the road to keep a lookout.
The appellants, plaintiffs in the court below, sued the appellee, Leo McDevitt, for the wrongful death of Charles R. Reid, an aged and unmarried man, who was killed in the town of Heidelberg, Mississippi, by a car operated by McDevitt. The injury occurred about 7:30 P.M., April 12, 1931, upon a street known as Twentieth street, or Jackson highway. It appears that the deceased was going from a café on said street in an angling direction across the street, his home being on the opposite side of the street, and at the time of the injury was walking on the left-hand side of the street going west. The car approached from the east without making any noise and without sounding an alarm, and came in contact with the deceased. The appellee testified that he did not see the deceased until he was within four or five feet from the car, and that he (appellee) wheeled his car to the right to avoid hitting the deceased, and that the collision occurred at the car window on the left-hand side opposite the driver.
The deceased had a fractured skull, several broken ribs, and other bruises. He was blind on his right-hand side, and just a little thick of hearing. The car, at this time, was traveling on the left-hand side of the road, and the collision occurred some ten or twenty feet from the center, on the south side of the road. The deceased was knocked down after breaking the glass of the car with the impact, and, as some of the witnesses stated, "was kinder balled up." Several witnesses, some of whom were eye-witnesses, and one who was seventy-five yards away and could see the car, testified that they heard no signal, and did not hear the brakes until after they heard the impact of the collision.
The defendant testified that he was traveling with his lights dimmed in passing through the town, claiming that was the proper thing to do. He did not state how far he could see with his lights dimmed. He admitted that, when he crossed the street to the east, or where the collision occurred, he did not cross on the right-hand side, and that the deceased was only a short distance from this crossing when the collision occurred. The wife of the defendant was on the front seat of the car with him, and she testified that she did not see the deceased until within four or five feet of him. The defendant testified that he did not have time, after seeing the deceased, to sound the horn or alarm, but that he swerved his car seeking to avoid coming in contact with him.
The testimony was conflicting as to the rate of speed of the car, there being testimony that it exceeded the speed limit prescribed by the law, and others testifying that it was traveling at twenty miles per hour, or less; twenty miles being the highest speed permitted by the statute in municipalities, and there being no municipal ordinances regulating the rate of speed.
There was a verdict for the defendant, from which this appeal was prosecuted.
The court instructed the jury for the defendant as follows: "The court instructs the jury for the defendant that the fact that the defendant may or may not have been on the defendant's left of the center of the road or street is not material and you cannot, under your oaths, return a verdict for the plaintiffs on this ground alone."
We think it was error to give this instruction. Section 5574, Code of 1930, among other things, provides as follows: "Any such person so operating, or causing to be operated, a motor vehicle, shall, at the intersection of public highways or streets, avenues or alleys of any city, town or village, keep to the right of the intersection of the center of the highways when turning to the right and pass to the right of such intersection when turning to the left. All pedestrians walking along the public highway shall walk on the left side of the road, or in such way as to face the direction from which cars using that side of the road are approaching."
It will be seen from a reading of the whole of section 5574 that pedestrians walking in the street must walk on the side from which cars usually approach, so as to face the approaching car, and cars traveling in the same direction as the person walking in the street will approach him from the rear if on the left-hand side of the street; it being the duty of the pedestrian to be on the left-hand side of the street. As the car of the defendant was on the left-hand side, and this side was not usually the side for cars to travel, going in the direction in which this particular car was going, it was under duty to keep a strict watch for pedestrians on said street who would not, under the circumstances, be attracted to the fact that a car was approaching.
It is therefore very material to the decision, on which side of the street the defendant was traveling, and he was under duty to keep a strict watchout when he was on the left of the center of said street, as he was likely to overtake and injure persons traveling on the street with their backs to him. It may be true that, when there is no person in the street, the drivers of vehicles have the right to use any part of the street, but, in order that they may do so, the street must be clear of others equally entitled to its use, and, if not clear, then it is the drivers' duty to keep to the right-hand side of the road or street.
It is complained also that the court erred in giving the following instruction: "The court instructs the jury that the defendant was under no duty to sound his horn to warn the deceased, if defendant saw deceased so close to the automobile that he had no time in which to do so. However, it was the duty of the defendant to use reasonable care to discover persons in the highway in time to warn them of his approach."
As applied to the evidence in this case, we think it was error to give this instruction. Section 5572, Code of 1930, among other things, provides that, upon approaching persons walking in the highway, or animals being ridden, led, or driven, a person operating, or causing to be operated, a motor vehicle, shall give, or cause to be given, reasonable warning of its approach, and use every precaution to prevent injury to persons or animals.
It was, under the facts of this case, the duty of the driver of the automobile, since he was on the left-hand side of the road when he ought to have been on the right-hand side, to have kept a strict watchout, and to have given signals of his approach.
For the errors indicated, the judgment of the court below will be reversed, and the cause remanded.
Reversed and remanded.