125 F.2d 147 | 5th Cir. | 1942
Lead Opinion
The suit was for damages resulting in the death of one Paul Armour. The claim generally stated, was that while riding on a public road on his bicycle, Armour was negligently struck and killed by a motor vehicle, owned by defendant, General Contract Purchase Corporation, and driven by defendant Scott. The particular negligence
The defense was a denial, that Scott was in any way negligent, and specifically, that hé was driving in excess of 60 miles per hour or at apy excessive rate of speed and that visibility was greatly impaired by weather conditions as plaintiff had alleged. There was a further specific 'answer that defendant Scott was proceeding on the highway operating the automobile in a perfectly lawful and proper manner and that the acts and negligence of Armour in attempting, as he did, to cross the highway, were the sole proximate cause of his death and injury. In addition to filing an answer, defendants, alleging a prior employment of the firm of Roberson & Luckett by defendants, on an inquiry into whether the homicide was with gross or criminal’ negligence, moved
On the hearing of the motion,-. -Scott, on examination by Mr. Lowery, was asked the following questions:
“Q. Mr. Scott, are you here objecting to Mr. Roberson helping me represent the widow and children? A. No, sir, I am .just a witness.
“Q. You are not personally objecting? A. No, sir. I wouldn’t have anything against you people personally.”
But upon re-direct examination, he testified that the filing of the motion against Roberson and Luckett’s representing plaintiff was done with his understanding and approval.
“Q. Were you not indignant about their calling you down there under those circumstances and didn’t you protest to me? A. Well, I didn’t feel very good about the matter because I felt more or less like they got me there to double-cross me or mess me up. After it happened I could see through it. I ought to have gotten an attorney to represent my company, so I went to Mr. Sacks about it and told him what happened.
“Q. I will ask you if it hasn’t been "the attitude of your employees or yourself all through this, that these attorneys were not properly representing the adverse interests in this case. A; Yes, sir.”
The district judge on these questions and answers held that Scott had a right to object to Roberson and Luckett appearing in the case for the plaintiff but. had waived his objection.
The. case then went to trial before the court without a jury and counsel for plaintiffs took the position that the testimony Scott had given on the trial in the criminal cause in the justice court made him liable in the damage suit, and by vigorous cross-examination, undertook to show that Scott had changed his testimony for the civil trial. Further as shown by their brief
Appellant is here insisting that the court erred in denying the motion to disqualify Roberson and Luckett, and in his findings and judgment for plaintiffs, and that the judgment must be reversed because of these errors. We agree with appellants. While, under Section 1002 of Mississippi Code of 1930,
The statutes of Mississippi, Mississippi Laws of 1938, Chapter 200, Article 6, § 51 (b), provide, “where no special hazard exists the following speeds shall be lawful, but any speed in excess of said limits shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful : (1) Twenty miles per hour in any business district; (2) twenty-five miles per hour in any resident district; (3) fifty-five miles per hour under [any] other conditions.” The injury occurred in the country and though, in an effort to avoid the effect of the statute, plaintiffs charge Scott with driving 60 miles per hour, the uncontradicted proof is that he was driving between 40 and 45 miles an hour. The same uncontradicted proof establishes: that though it was dark, his lights were in good condition and lighted the road ahead of him; that while it was snowing the visibility was good for there was a wind blowing, the snow was dry, it did not pack or cake and did not at all obstruct his vision, and he was watching the road as he went; and finally that there was no sign or intimation on the highway of this small neighborhood or turn out road out of which the deceased came darting at 25 miles per hour, riding a bicycle without any light.
This evidence does not support, it rebuts the finding of the- district judge: “that Scott was driving at a somewhat too
Reversed and remanded.
The motion filed on behalf of. the two defendants, set ont that Seott had employed Mr. Roberson, the senior member of Roberson and Luckett-, to represent him in the justice court,, and had been assured by-Roberson' that he was in no wise criminally responsible. 'For these services the firm of Roberson-and Luckett were paid $50.00 by cheek of the General Contract Purchase Corporation; that asked by Luckett to come to their ofiice, Seott was interviewed in that office by Mr. Lowery for the purpose of getting evidence for a civil suit to be filed on account of fié accident and concluded with the suggestion that Roberson and Luckett should not be permitted to prosecute the suit.
“It is perfectly clear that- Scott,". at the time of tbe accident, was violating the cardinal rules' of the road, without the observance of which travel on the highways is unsafe and hazardous in the extreme. He was driving on the blind assumption that he was entitled to a dear road. And either he was driving at a rate of speed which did not permit him to avoid injury to persons and vehides which came within the range of his vision, or he was not keeping an alert lookout for others using the road. He was, in fact, ‘driving his car at a dangerous rate of speed when he was, figuratively speaking, blindfolded by weather conditions or by a failure to keep an alert lookout. He was, in every sense of -the term, -grossly negligent.’ ’’ Page 22. of the appellees’ brief.
Homicide — all other killings. — Every other killing of a human, being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this chapter, shall be manslaughter.
Section 110, Chapter 200, Article 15, Mississippi Law of 1938 provides: Tbat every bicycle sball be equipped with, a lamp on the front exhibiting a white light visible at a distance of 500 feet from the front, and a lamp on the rear exhibiting a red light visible at a distance of 500 feet to the rear.
Dissenting Opinion
(dissenting).
I think the testimony in the record supports the findings below on the issues of waiver, negligence, and contributory negligence, and therefore dissent from the judgment of reversal.