McWhorter v. Draughn

98 So. 597 | Miss. | 1924

Holden, J.,

delivered the opinion of the court.

This was an action by the appellant against the appellees for damages for personal injuries alleged to be due to the negligence of appellees in stretching a chain across a public road, into which appellant ran his car while traveling thereon. At the conclusion of the testimony a peremptory instruction in favor of appellees was granted by the lower court, from which action this appeal comes here.

Since the question for our .determination is whether or not the lower court erred in granting the peremptory instruction against the plaintiff, we shall state the case as it appears from the testimony of the plaintiff, and from it decide whether the proof was sufficient to sustain the charge of negligence.

The case in short is this: There is a graveled public road running southeasterly out of Hattiesburg. At a point several miles out the appellees had felled logs on the side of the road to be hauled by them to their veneer plant at Hattiesburg. In loading these logs upon the truck on one side of the road, oxen were used on the other side to draw a chain attached to the logs pulling them up the skids onto the truck. When a log was being pulled upon the truck the chain extended across and obstructed the public road, and when pulled taut by the oxen1 the chain was about six feet above the ground.

One dark afternoon when the chain was thus stretched across the road the appellant approached in his Ford car, going south on the road and ran into the chain, damaging his car and injuring him personally. The chain was dark .in color. There was no warning received by the appellant before he struck the chain, which he did not $ee until within ten or twelve feet of it. He was driving his ear at a moderate rate of speed, and was using due care and caution at the time of the injury. Pie was not looking directly down the road, or he would have seen the chain; but he was looking on either side of the road at that point where he saw people on both sides of the road near the truck, and was using caution to prevent striking any one with his car that might suddenly step into the road.

The road was straight for more than two hundred yards before appellant reached the chain. He did' not know that a chain was stretched across the road, though he knew that logs were loaded upon trucks from the ramps at that point. No one stepped into the road and warned appellant of the chain, nor was there any warning or notice to him which he heard or saw before he struck the chain. The chain was obvious enough to be seen by the appellant if he had been looking for it or toward it, but he was not looking toward it nor expecting to find it stretched across the road, but was looking to either side of the road at that point where people and vehicles were on •both sides of the road.

Upon this testimony the lower court granted a peremptory instruction denying plaintiff the right of recovery. We think a mere statement of the case warrants the conclusion that the granting of the peremptory instruction was error. The fact that the stretched chain was obvious to the traveller would not relieve appellees of the negligence in stretching it across the road, because ibis fact could mean no more than that the appellant was guilty of contributory negligence in running into the chain, which would only go to a diminishment of damages.

It seems clear to us it was negligence for the appellees to obstruct the public highway by stretching a chain' across it and thus making it unsafe for public travel.

This chain stretched across the road six feet from the ground is not a customary use of the road as would put the burden on the traveler to discover the obstruction and stop his car before striking it. A traveler upondhe highway is only charged with the duty of using reasonable care to prevent running into other vehicles and objects which are using the road in a reasonable and customary manner. A dark chain stretched across the road on a dark afternoon, with no warning to approaching travellers is, in our judgment, negligence, and warrants a re-' covery of damages for injuries received by persons coming in contact with the chain while using the public road in a reasonable and proper manner.

It may be that tbe appellees had no lawful right at all to use the public highway in the unusual manner shown here, but we do not decide this question, because at all events the act complained of was negligence .under the facts and circumstances of this case.

We note there is some testimony showing the appellant had a defective eyesight, and there is other evidence in the case which may show contributory negligence on his part, but the test as to whether a recovery can be had, is whether the appellees were guilty of any substantial negligence which proximately caused the injury.

The judgment of the lower court is reversed and the case remanded.

Reversed and remanded.