Brownlee v. Blossman Gas, Inc.

148 So. 2d 202, 245 Miss. 303, 1963 Miss. LEXIS 520

• Court: Mississippi Supreme Court
• Decided: January 7, 1963
• Docket: No. 42490
• Status: Published

Opinions

McGehee, C. J.

On July 24, 1958, Albert L. Brownlee, a young man of about nineteen years of age, was killed in an automobile wreck on highway 42 about six or seven miles east of Richton in Perry County, Mississippi. The decedent was traveling east in bis Dodge automobile when be met what is hereinafter referred to as the gas truck, traveling west. It was the theory of the plaintiffs that there was another automobile about forty feet east of the scene of the accident when the plaintiff’s first witness, Major Brownlee, a cousin of the deceased, arrived at the scene; that this parked automobile was partly on and partly off the north lane of the blacktopped highway, extending about four and a half feet out onto the highway and that its right front wheel was jacked up. Major Brownlee, as a witness for the plaintiff, testified very positively as to this fact and another witness corroborated him to the extent that this other car was there, but the other witness, who was either Banks Moody or Murdock Smith, testified that they did not notice the right front wheel of this other car being jacked up, since in passing they were not paying any attention as to whether it was or not. It is not shown whether they '«'■ere on the opposite side from the right front wheel when passing it to go to the scene of the accident.

There was other testimony to the effect that at one time or another following the accident this other car, which was said to be a Chevrolet automobile belonging to a Mr. Byrd, did have a flat tire.

It was the theory of the plaintiff that since the gas truck was shown to he seven and a half or eight feet in width that it could not have passed the Byrd car if the same was located where Major Brownlee and the other witness said it was without crossing the centerline of the highway, that is to say, on Albert Brownlee’s side of the road, since the north lane of the highway was only ten feet in width and nearly half of the same was occupied by the Byrd car.

We shall not undertake to discuss all of the testimony in the case in detail for the reason that the case will have to be retried and we do not want to make any comment on the weight and worth of the testimony.

But we think that we should state enough of the facts to justify our action in holding that this case was one for the determination of a jury and that the trial court was in error in granting a peremptory instruction in favor of the defendant. For instance, the jury would have been entitled to have believed Major Brownlee if it had no reason to disbelieve his testimony and that of the other witness as to the presence of the Byrd car partly in the north lane of the highway. Then, too, the proof by a number of the witnesses was to the effect that after Dodge automobile driven by the decedent had been completely wrecked and demolished, the tracks of the gas truck ran over the radiator, windshield and tires of the remains of the demolished Dodge automobile in which the dead boy had been riding, and that the truck had then struck the ground about the center of the highway before going off down an embankment on the north side of the north lane of the highway.

The occupants of the Byrd car, while admitting that after the accident the Byrd car had a flat tire, all contended that the Byrd car did not arrive at the scene until after the accident bnt this merely presented a conflict in the testimony of Major Brownlee and the other witness to the contrary. There are usually one or more men in every community or area whom the jury would believe even though everyone else who knew anything about the facts in a case may have testified to the contrary. We don’t know whether Major Brown-lee was such a person in the opinion of the jurors or not.

At any rate, we think that this case should be reversed and remanded in order that another jury may pass on all of the testimony in the case on the question of who was at fault in this accident.

In concluding this opinion we are constrained to make the observation that it is conceded by all parties that the driver of the gas truck was making a speed of forty to forty-five miles per hour and that it was drizzling rain; and that he saw the approaching Dodge automobile driven by Albert L. Brownlee about fifty yards or more before the accident, and that he admittedly did not put on his brakes, sound his horn or do anything except as he says to get out of the way of the Brownlee car and we think that a jury should determine whether or not he was guilty of any negligence on the occasion complained of.

It therefore follows that we are of the opinion that the case should be reversed and remanded for a new trial.

Reversed and remanded.

Lee, P. J., and McElroy, Rodgers and Jones, JJ., concur.