Burcham v. Robinson, 74 So. 417

Burcham v. Robinson

74 So. 417 | Miss. | 1917

Stevens, J.,

delivered the opinion of the court.

Counsel for appellant challenges the correctness of the court’s ruling in granting the peremptory instruction in favor of the defendant, appellee here, after the testimony for both parties had been introduced and the cause was ready to submit to the jury. Counsel in oral argument earnestly contend that appellee’s driver approached and passed the team and buggy in. which appellant was sitting at a reckless and high rate of speed; that he kept in the middle of the road, and that the automobile, in whizzing by, frightened the mules of appellant’s father, caused the buggy to be overturned, and the inmates of the vehicle to be dumped into a gutter by the roadside. *530Counsel contend further that the plaintiff’s proof showed that the driver of the car “violated all the law of the highway or the byway;” that the car was running so fast that even after the brakes had been put on the car “skidded up hill.”

Without intimating any opinion as to the weight of the testimony, it is sufficient to say that the testimony was very conflicting, and the cause, in our judgment, should have been submitted to the jury. The testimony on behalf of the plaintiff tended to prove that the driver, in approaching, saw, or at least had ample opportunity to discover, that the mules were frightened and that he did nothing to slacken his speed, to turn to the right, or to prevent the injury complained of. Without expressly holding that under the facts the driver in this case should have turned further to the right, we think the testimony was sufficient to warrant a finding by the jury that the driver by his speed and manner of passing appellant’s team frightened the mules and took no precautions to relieve appellant and the other inmates of the buggy from their peril, but, on the contrary, negligently and wrongfully continued his speed and course and caused the mules to dash out of the road into a ditch. . It is true that this injury occurred before the enactment of the state traffic law of 1916 (chapter 116) regulating the speed of motor vehicles and declaring the law of the. road in reference thereto.

But, without any statute on the subject, we conceive it the duty of the driver of an automobile, which, by its speed and noise, is likely to frighten the ordinary country horse or mule, to observe the frightened attitude of an approaching team, and, if necessary, to check or slacken his speed, and otherwise to take reasonable precautions to prevent the team from getting beyond the control of its driver. According to the testimony of the plaintiff, no precautions whatever were taken in this case to prevent or stop this pair of unruly country mules from becoming further frightened and causing the *531unfortunate wreck in-question. It is not unreasonable, we think, to hold the owners of motor vehicles to a' strict account in cases of this kind. Certain it is that under the conflicting testimony the question of whether ap-pellee’s car was being driven at a reckless rate of speed or whether the driver could have, by stopping or turning to the right, avoided the injury, should have been left to the determination of the jury under proper instructions from the court.

Reversed and remanded.