Mrs. Imogene Toombs Parkins, Appellant, v. Sam Lawrence Brown, Appellee, 241 F.2d 367 (5th Cir. 1957)

The question presented by this appeal is whether the Court below committed error in directing the jury to return a verdict in favor of appellee Brown in a personal injury suit brought against him by appellant Parkins. Defendant had driven his 1950 Oldsmobile into plaintiff when she was crossing United States Highway 51 in the early hours of the night of December 26, 1954. The Court below first submitted the question of negligence to the jury, but upon being advised after several hours of deliberation that the jury had not reached a verdict, it discharged them and sustained defendant's motion for a directed verdict.

Having in mind that "in determining whether [defendant was] entitled to a directed verdict, every fact favorable to [plaintiff] which evidence established either directly or by reasonable inference must be considered as proved,"¹  examination of the record reveals that credible evidence was introduced from which the jury would have been warranted in finding the following facts:² 

Plaintiff left Jackson in the afternoon of the day after Christmas en route to Memphis to visit her child. She drank three bottles of beer between three and four o'clock that afternoon. About five thirty o'clock she employed a taxicab to take her to the outskirts of Jackson in the hope that she could walk along the highway and catch a bus, having in the back of her mind doubtless that someone might pick her up. A man in a pick-up truck came along and offered her a ride, which she accepted. He was headed for Allison's Wells, a point some thirty miles north of Jackson. He drove north along Highway 51 until he reached his turnoff road, and he turned to the left and discharged plaintiff at the edge of the asphalt road leading from Highway 51 to Allison's Wells and at a point on the left or west side of Highway 51.

At the moment, a long line of automobiles was traveling south on Highway 51, and she waited until the last one had passed. Thereupon she started diagonally across 51 to go to the Triangle Inn, a store and gasoline station, where she had been advised she could obtain a bus ticket and wait for the bus. She had her coat on one arm and a suitcase in the opposite hand. She had walked twenty-one feet³  to the black (middle) line in the highway and had proceeded about half way across the right or northbound lane when defendant's car struck her.

The asphalt paving on the Allison's Wells road ended as it reached Highway 51, forking at that point so that motorists could gain easier access to and from Highway 51. Across Highway 51 was the Triangle Inn and nearby was a warehouse. Two local farm roads, one graveled, came together near the store which was sitting back some 110 feet on the east side of Highway 51 and separated therefrom by a graveled apron. Mississippi Stop signs were in place at the entrances to Highway 51 from the Allison's Wells paved road and from the local gravel road.

Defendant and his wife were traveling north on concrete Highway 51 at a speed of about 45 miles an hour with the headlights dimmed, the road being straight and slightly upgrade. He had lived all of his life near this intersection and was familiar with it. He normally drove in daylight hours at about fifty miles per hour, but had slowed down somewhat upon meeting the string of cars and because he was accustomed to find loose stock along the highway.

He did not see plaintiff at all until she was at about the black line marking the entrance to the lane in which he was driving. Apparently plaintiff did not see defendant's car until she was past that point. Her diagonal route towards the store threw the approaching car somewhat to her rear. She was struck when about in the middle of the ten-foot northbound lane of Highway 51, about 26 feet from the point she had entered, and was knocked off of the highway to the east. Defendant had cut his car sharply to the left when he saw plaintiff about twenty feet in front of him. Defendant did not apply his brake until he had struck plaintiff.

Plaintiff suffered serious and permanent injuries including broken pelvis and fractures of bones in her leg above and below the knee; she had spent most of the time for about nine months in various hospitals undergoing a series of operations, and the prognosis of the bone specialist was that she would suffer a permanent partial loss of function of the injured leg.

Besides the lights on defendant's automobile, the intersection was lighted to some extent by a large electric sign advertising Allison's Wells situated about fifty feet from the highway on the west side, and two lights on the store on the east side. An engineer's drawing depicting the scene of the accident and a number of photographs were before the jury to assist them in getting an accurate grasp of the situation and an intelligent appreciation of the testimony.

Under the facts outlined, we think it was error for the Court below to direct a verdict in favor of the defendant. Ordinary care required that defendant keep a never-ceasing lookout ahead of him and that he see what was within his vision, and his failure to see what he could have seen by the exercise of due diligence does not absolve him from liability. Reasonable care also required that he operate his automobile at such a speed as would permit him to take the steps necessary to avoid colliding with a pedestrian using the road within his length of vision ahead as provided by his headlights. This duty was heightened by the presence of the intersection with which defendant was fully familiar.⁴ 

The Supreme Court of Mississippi has stated the applicable rule in Terry v. Smylie, 1931, 161 Miss. 31, 133 So. 662, 663-664:

"* * * the evidence showed without dispute that if the car in which appellants were driving had been operated with due care, the injury would not have occurred, notwithstanding the appellee may have been guilty of contributory negligence. * * * He [the operator of an automobile] 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 that the street is clear. He has no right to assume that all other persons are obeying the traffic laws. Whenever he finds himself so blinded by the lights of another car, or from any other cause, so that he cannot see in front of him a distance within which he can stop his car at the rate of speed he is traveling, he should at once bring his car within such speed * * *."⁵ 

According to defendant's wife, his normal maximum daytime speed was fifty miles an hour, and yet he did not, on this occasion, reduce below forty-five miles although he was meeting a long line of cars, which, incidentally, both defendant and his wife said did not tend to blind them. This line of cars in the south lane of the highway was traveling also at about forty-five miles per hour.

The civil engineer figured out a schedule showing where defendant's car was with reference to the last of the southbound cars based upon various assumed speeds of cars and pedestrian. Aside from this schedule there was no dispute about the fact that plaintiff did not leave the curb around the neutral ground on the west side of 51 until the last southbound car had passed her, and this curb was twenty-one feet from the black line separating the north and south lanes. She was moving at a normal pedestrian rate of about three miles per hour. Defendant's car and the cars in the south lane were moving substantially fifteen feet to every foot traversed by plaintiff. On that basis, the last car in the southbound group was three hundred fifteen feet south of plaintiff when she reached the black center line.

By the same figures, defendant's car was substantially three hundred fifteen feet south of the same point when plaintiff entered the paved highway. Assuming that his view of plaintiff was obscured for a brief interval by the cars in the south lane, it is clear that he had an open and unobstructed view of her one hundred fifty or more feet after the last southbound car had passed him. Why he did not raise his lights at that point, or why he did not see plaintiff until he was only twenty feet from her, or why he did not apply his brakes or begin to slow down his car until he had struck her, remained unexplained.

It being clear that there was ample evidence from which the jury could have found that defendant was negligent, it is not important to discuss whether plaintiff was also negligent. It is provided, by § 1454 of the Mississippi Code of 1942, that: "In all actions hereafter brought for personal injuries * * * the fact that the person injured * * may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured."⁶ 

The argument that defendant was called upon to act in an emergency does not impress us. The doctrine applies only if and when the pedestrian suddenly appears in the motorist's lane of travel at an intermediate or unexpected point.⁷  Plaintiff was crossing the highway at a point where she had a right to be, and she entered the intersection when defendant's car was three hundred or more feet away. Under Mississippi law, even a vehicle required to stop at this intersection could proceed into the highway unless the competing vehicle on the through highway had entered the intersection or was "approaching so closely on said through highway as to constitute an immediate hazard * * *"⁸  There was no legal reason why plaintiff should have considered a car three hundred feet away from the intersection when she entered it as an immediate hazard; and reasonable care would require that defendant anticipate the probable presence of persons or vehicles using the intersection, particularly after the long line of cars had just passed.⁹ 

In our opinion, the evidence as to all of the phases of the reciprocal duty of pedestrian and motorist presented issues for jury decision and, for the error of the Court below in taking the case from the jury, it is reversed and remanded.

Reversed and remanded.