123 So. 2d 535 | Miss. | 1960
A word of explanation is in order at the outset as to why this case originated in Leflore County and was tried in Forrest County. The defendant, Donald M. Young, was employed in Leflore County when the accident in question occurred but his employer later trans
Mr. Young testified as an adverse witness on cross-examination and admitted that on the occasion in question he had stopped under a viaduct in a severe hailstorm and remained there four or five minutes. Mrs. Klumok was driving her automobile and stopped under the same viaduct about four or five car lengths ahead of Young. Mr. Young admitted that her rear lights gave him notice, after they left the viaduct, that she was slowing down. He also admitted that the road was very slippery and that he knew it and that he slowed very little and with the road covered with hail, he struck the back of Mrs. Klumok’s automobile and he admitted that he struck her with tremendous force and that at the time it took him four or five car lengths to stop. Both automobiles were traveling south and several cars were coming from the opposite direction and he struck Mrs. Klumok’s car, according to his testimony, hard enough to totally destroy his automobile, a Buick car.
It is not seriously contended that Mrs. Klumok did not sustain considerable injuries. She was first in South Sunflower Hospital and was later in Campbell’s Clinic in Memphis where she was put in traction. She had to go to Memphis three times and was not only severely injured but was put to considerable expense in repairing her car as well as a considerable amount for automobile rent while she was undertaking to have her car repaired and also a considerable expense for extra help in her store to keep it going at a time when she was unable to be there.
The appellee, defendant, claimed in his answer that the hail and rain quickly changed the conditions on the highway and that the road became a slippery road during the hailstorm and that it was the weather conditions and no fault or failure of the defendant that the accident occurred and that the accident was purely accidental and may be and should be classed as a pure ac
At the trial the jury was instructed for the defendant that if they should believe from a preponderance of the testimony that on the occasion of the accident in question it was hailing and there was resulting ice on the pavement and if they further believed from a preponderance of the testimony that the pavement was made unusually slippery because thereof and that this condition and situation could not have been foreseen by a reasonably prudent person using ordinary care for his own safety and for the safety of others on the highway at the time and that the defendant was free from negligence then it is their sworn duty to find for the' defendant. This instruction was not warranted by the proof in the case nor by any testimony but was' contrary to Mr. Young’s own admissions. In fact he admitted that he knew that the pavement was unusually slippery because of the hail thereon. He admitted that he had full knowledge of the condition and situation which then and there existed upon the highway.
Prom what we have said it is evident that tbe verdict against Mrs. Klumok is not supported by any evidence and should not be permitted to stand. But, on tbe contrary, Mr. Young practically admitted liability, swore himself into tbe situation where tbe plaintiff should have bad a peremptory instruction against him, and tbe judgment of tbe lower court will, therefore, be reversed and a judgment on liability entered here in her favor and tbe cause remanded to tbe lower court for assessment of her damages.
Reversed, judgment here for appellant, and remanded for trial on tbe issue of damages.