Davis v. Waterman

420 So. 2d 1063
CourtMississippi Supreme Court
DecidedOctober 13, 1982
Docket53449
StatusPublished
Cited by5 cases

This text of 420 So. 2d 1063 (Davis v. Waterman) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Waterman, 420 So. 2d 1063 (Mich. 1982).

Opinion

420 So.2d 1063 (1982)

Mrs. Rogene Winborne DAVIS, Admrx. of Estate of Terry David Davis, Deceased
v.
Nathaniel WATERMAN.

No. 53449.

Supreme Court of Mississippi.

October 13, 1982.
Rehearing Denied November 10, 1982.

*1064 William F. Riley, Natchez, Donald Patterson, Brookhaven, for appellant.

Daniel, Coker, Horton & Bell, Curtis E. Coker, J. Wyatt Hazard, Jackson, for appellee.

Before SUGG, P.J., BROOM and BOWLING, JJ.

BROOM, Justice, for the Court:

Wrongful death action growing out of an intersectional vehicular collision is the nature of this suit, tried in the Circuit Court of Lincoln County, the Honorable Joe N. Pigott, circuit judge, presiding. The appellant (plaintiff herein) Mrs. Rogene Winborne Davis, as Administratrix of the Estate of Terry David Davis, Deceased, brought this action on account of the death of Terry, her son, born February 14, 1966, and killed September 30, 1979, in the collision of his motorbike with a car driven by Nathaniel Waterman (defendant herein). The jury found for the defendant, and we affirm.

On appeal, the plaintiff argues: (1) the court erred in allowing the jury to consider the question of contributory negligence on the part of the plaintiff's decedent, (2) the jury verdict was not supported by adequate evidence and was not responsive to the court's instructions, (3) the court erred in failing to grant the plaintiff's requested *1065 peremptory instruction, and (4) the court erred in refusing to grant plaintiff's instruction P-5 on the law of contributory negligence.

Terry David Davis (Terry herein), wearing no helmet, was driving a motorbike on September 30, 1979, and stopped at an intersection while headed east on Arlington Road in Lincoln County, where it intersects U.S. Highway 51 in the town of Bogue Chitto. The accident occurred about midafternoon on a fair day, when the defendant's (Waterman's) car apparently struck the motorbike as Waterman was headed south. Terry died on the scene after pulling out into the intersection in front of Waterman. The intersection was in a builtup area near residences, stores, a bank, school and church. Other facts will be stated as pertinent within this opinion.

DID THE TRIAL JUDGE ERR IN ALLOWING THE JURY TO CONSIDER THE QUESTION OF CONTRIBUTORY NEGLIGENCE ON THE PART OF THIRTEEN-AND-ONE-HALF-YEAR-OLD TERRY, THE DECEDENT? General law in this state has been that a child between the ages of seven and fourteen is presumed incapable of contributory negligence in failing to exercise due care for his own safety. Moak v. Black, 230 Miss. 337, 92 So.2d 845 (1957). Both litigants recognize that the presumption is rebuttable, but the plaintiff argues that "the record is void of any evidence which would in any way rebut this presumption. No proof, in fact, was offered by the defendant to rebut said presumption." Defendant's argument is that upon this record, pursuant to the rule enunciated in Johnson v. Howell, 213 Miss. 195, 56 So.2d 491 (1952), and upon the testimony introduced at trial, the presumption was rebutted, therefore making it proper for the question of contributory negligence to be submitted to the jury. In Johnson, the jury was instructed:

[T]hat if you believe from the evidence that the plaintiff, Bobby Howell, from his age, intelligence, knowledge and experience has sufficient discretion to be charged with negligence and if you further believe from the evidence that the plaintiff, Bobby Howell, was guilty of negligence which contributed to the injury, then the court instructs you that any damages which the plaintiff has sustained shall be diminished in proportion to the amount of negligence attributable to the plaintiff.

Id., at 198, 56 So.2d at 491-92, (emphasis added).

As to whether the contributory negligence issue was properly submitted to the jury, the following is excerpted from the testimony of Deputy Sheriff Winborne, who testified (on cross-examination) as follows, when placed on the stand by the plaintiff:

Q Well, you knew Terry very well and you had confidence in him knowing about the rules of the road, did you not?
A I've told him many a time to always stop at stop signs, never cross the highway when a person is approaching it with his signal lights on because they're mechanical. It could very easily be on and they not even know their signal lights was on. Always wait until the car made the attempt to make its turn, even though you knew its signal light was on before you crossed, because that signal light could be hung up and that man might not even know that light's flashing, and he might have no intention of turning. And you go ahead and take it for granted the man's going to turn off and cross in front of him and he'll run over you, I said, "Always wait `til you know that the man is done in the position of turning off before you pull out."
Q In other words, what you're telling us is that even just you telling him, he was well instructed in the rules of the road and how to handle himself with traffic?
A I would say so.

Testimony in the record established that Terry had been riding a motorbike for two years and was a good rider. Further testimony was that Terry knew he was supposed *1066 to stop at the stop sign, was familiar with traffic, and knew he should look both ways before entering the highway. He was a seventh grader, about thirteen-and-a-half years old. It is true that none of the testimony literally described Terry as having "exceptional capacity" for his age, but we think the totality of the evidence was sufficient to justify the issue of his contributory negligence going to the jury. Clearly the evidence showed that he had capacity sufficient to know and appreciate the peril of his situation. Howell v. Illinois Central Railroad Co., 75 Miss. 242, 21 So. 746 (1897).

Regardless of the fact that the magic words "exceptional capacity" were not used in describing Terry's mentality, we think the time has come when minors who operate a self-propelled vehicle on a highway must be held to the same standard of care as an adult. It is common knowledge that many children now operate self-propelled vehicles upon public streets and highways, and such vehicles in their hands are equally as dangerous as they would be if operated by adults. The proper rule, which we now adopt, is that stated in Gunnells v. Dethrage, 366 So.2d 1104 (Ala. 1979), wherein the Alabama court held:

The overwhelming majority of jurisdictions hold minors to an adult standard in determining whether their conduct while engaging in an adult activity is negligent. [citations omitted]. The prevailing view is that a minor who enters upon an adult activity such as the operation of a motor vehicle must exercise a commensurate degree of responsibility. Motor vehicles are dangerous instrumentalities and public safety demands that all who operate them exercise the same degree of care and competency. We adopt this view.

Id., at 1105.

To the same effect is the following language taken from Prosser, The Law of Torts, § 32 (4th ed. 1071):

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