Ripley v. Wilson , 140 Miss. 845 ( 1925 )

Eti-iridge, J.,

delivered the opinion of the court.

The appellee sued the appellant for injuries resulting from a collision of two motor vehicles, one driven by the appellant and the other by the appellee. The collision took place at an intersection of two streets in the town of Amory, Miss. The appellant was traveling from east to west on one street, and the appellee from north to south on another street. Both vehicles were on the proper side of the street. There is a dispute as to who was at fault in approaching the crossing. The actual collision took place at the southwest corner of the intersection, the appellant having turned from the north side of the street to the south side. This, of course, left the appellee on the proper side of the street, where he was traveling. • The court below gave a peremptory instruction of liability against the appellant, and for the purposes of this decision the correctness of that action must be determined by the appellant’s version of the facts. He testified that he was going on the proper side of the street at a speed of from six to ten miles an hour; that a building in the northeast corner of the intersection obstructed the view until he was near the point of collision; that when he heard the roar of the appellee’s car and looked, he saw it was going at a high rate of speed, to use his expression—-“about as wide open as it could.” He refused to state the speed definitely, but said appellee’s car was traveling rapidly, and that he saw that if he stopped his car a collision would occur, and that he accelerated his speed and swerved to the south side to avoid a collision, and that his car was struck by appellee’s car on the side or door of the car, which was bent and the running board crushed under the car; that the appellee’s car was injured on the hood and in front, and the glass broken as it turned over on the side.

“The corner of this house opens sufficiently for me to see around here; he was so close to me that I knew if I put on my brakes on my car, it would stop it where be would cross this intersection; so with the same glance my common sense showed me that he was trying to make a west turn on this street. My instinct, as a chauffeur, told me that with the speed he was going I was bound to hit the car he was driving, so I pulled over here to give him as much room as possible; the obvious thing—(Objection.)

“By the Court: Well, don’t argue the case.

“Well, instead of taking the opening here, I never made up my mind whether he changed his mind, or subconsciously he made another turn here, when feeling that his car was going to turn over; anyway he hit me in the middle of the Ford coupé I was driving, in the middle of the door; it killed the engine on my car, but I threw it into low about this time; the post and trees on this vacant lot were as close to the sidewalk as they could get, and I got in there in low and went right back to the car that had overturned.”

Appellant further testified that his car was in good condition and it would take about fifty feet for it to stop, going from six to ten miles an hour. The man who repaired appellant’s car corroborated his statement about the injury to the two cars.

The court, in instructing peremptorily as to liability, seemed to base his ruling upon the fact that appellant was on the wrong side of the street or road at the time of the collision, and upon the fact that the statute of the state directs parties to keep on the right-hand side of the center of the intersection of the street in crossing, and in making turns to keep on the right-hand side of such point. Generally speaking, a failure to observe the statute is negligence per se, but we do not think the stat ute was meant to prevent a person in a case of emergency and when in danger of a collision from turning and going upon the wrong side of the street. In such case, the paramount duty of the driver is to avoid injury if it can be done; and if it reasonably appeared to the appellant, judging by appearances at the time, that turning would prevent, or would be likely to prevent, the injury, that his duty would be to turn, even though it threw him on the wrong side of the road.

In Hudcly on Automobiles (5th Ed.), section 270, page 324, it is said: ‘ ‘ The violation of the law of the road is not conclusive on the question of the violator’s negligence; it is only prima-facie evidence of his negligence, and he is permitted to show circumstances excusing his conduct and rebutting the presumption of negligence. He may show the surrounding circumstances indicating a necessity for turning to the left side of the highway. A deviation from the rule is sometimes necessary in the crowded streets of a metropolis. And, in order to allow street railway passengers to alight, it is said that the driver of a motor vehicle may use the left side of a street. But the fact that, on account of the darkness, the driver was unable to see the vehicle he was approaching' does not excuse his conduct in driving on the wrong side.”

Under our statutes (section 5781, Hemingway’s Code), the questions of negligence are generally for the jury, and the particular facts involved in this case, in our opinion, should have gone to the jury, and the jury should have determined under appropriate instructions-the question of negligence. If we accept the appellant’s evidence as being true, wo think no recovery should be had, as ’ his evidence would, in our opinion, exonerate him if fully believed by the jury.

The judgment of the court will be reversed, and the cause remanded.

Reversed amd remanded.