Logan ex rel. Logan v. Thomas

259 So. 2d 480, 1972 Miss. LEXIS 1530
CourtMississippi Supreme Court
DecidedMarch 13, 1972
DocketNo. 46580
StatusPublished
Cited by3 cases

This text of 259 So. 2d 480 (Logan ex rel. Logan v. Thomas) 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
Logan ex rel. Logan v. Thomas, 259 So. 2d 480, 1972 Miss. LEXIS 1530 (Mich. 1972).

Opinion

PATTERSON, Justice:

This appeal arises from the Circuit Court of Hancock County. The trial judge there granted a directed verdict for the defendants when the plaintiff rested his case. The sole issue on appeal is whether the court erred in directing the verdict. After considering the facts, hereinafter set out in detail, we conclude there was sufficient evidence to constitute a jury issue. We therefore reverse and remand for a new trial.

This litigation is the result of an automobile accident in which Sean Logan, a pedestrian, was struck and injured by an automobile driven by Mrs. Ruby Thomas, the defendant. The record reveals that Mrs. Thomas, accompanied by three of her children, was driving her car in an easterly direction on Main Street in the city of Bay St. Louis on the morning of October 14, 1967. Mrs. Thomas stopped her automobile momentarily in compliance with a “stop sign” at the intersection of Necaise Avenue and Main Street and thereafter continued in an easterly direction along Main Street.

Judge Rhodes, a justice of the peace and a cousin of Mrs. Thomas’ husband, owned the first house some fifty or sixty feet east of the intersection and south of Main Street. As Mrs. Thomas passed the intersection, she observed Judge Rhodes on the steps of his home conversing with another man. An automobile was parked on the south side of Main Street very near the two men. Immediately east of the Rhodes home there is an automobile driveway extending from Main Street into the Rhodes property. In this driveway, several feet south of Main Street, there was a pile of gravel, evidently placed there for building purposes. There is also south of Main Street and east of the Rhodes driveway a telephone pole which has some evidentiary significance.

The defendant’s view of Main Street from its intersection with Necaise Avenue was unobstructed other than the automobile parked in front of the Rhodes home. The photographs in evidence disclose that the driver of an automobile proceeding in an easterly direction in his traffic lane on Main Street would have, from the intersection of Necaise Avenue, an unobstructed view of the driveway into the Rhodes [482]*482property south of the parked automobile, as well as an unobstructed view of Main Street to the east and north of the parked automobile.

As Mrs. Thomas approached the Rhodes home, Sean Logan, with his three brothers, awaited their grandmother on the opposite side of the street who was to take them upon a trip to the country. The home of Mrs. Egloff, the grandmother, is situated on the north side of Main Street slightly east of the Rhodes home. Sean Logan, who was then three years of age and three and one-half feet in height, was engaged in the childhood activity of transporting gravel from the pile in the Rhodes driveway to a toy truck in the driveway of the Egloff home. His trips from the gravel pile on the south side of the street to his truck on the north side were hastened since the material would slip through his fingers. The scene was thus set for the ensuing accident.

Mrs. Thomas, called as an adverse witness by the plaintiff, testified that she was driving no more than twelve to fifteen miles per hour as she approached the parked automobile in front of the Rhodes home. She stated that she observed Judge Rhodes with another person near the automobile prior to the accident. She testified:

Well, I started up and I saw these two men and the parked car. I had just started off from the intersection and I had to slow again to go around the parked car. I looked ahead to see if anything was coming and there was nothing, so I was going around the parked car when the child was hit.
A. As I was passing the parked car, I felt an impact, like a bump, and I threw the brakes on immediately. I knew I had hit something, but I thought it was a dog, and I turned to the back seat and said to the children, “My God, I believe I hit something. Did you see anything” ? And they said “no, we didn’t see anything.” I thought it must have been a dog.
Q. How far past the parked car were you when you felt something?
A. I think it was almost even with it, the front of my car was almost even with the parked car, or past it.

The testimony of Mrs. Thomas as to slowness of speed is corroborated by other witnesses in that they testified she stopped her car within six feet after striking the Logan child. This is also borne out by other testimony that the automobile came to a stop before it cleared Sean’s body.

The testimony of Hank Logan, Jr., who was eleven years of age at the time of trial and who was properly qualified as a witness by the court and accepted as such by the parties to the suit, was that the photographs introduced correctly depicted the scene of the accident. He marked thereon, at the instance of the attorneys, the gravel pile, the center of the driveway, and just east thereof, the telephone pole. He gave evidence as follows:

Q. Can you tell me in what direction Sean ran across the street ?
A. Like this, from one side of the telephone post to where the sidewalk is leading into the porch of grandmother’s house.
Q. Did he run straight across ?
A. Not straight across.
Q. Which way did he run ?
A. He ran like this, from this corner to this corner.
BY MR. SYKES: Let the record reflect that the witness is referring to a [483]*483Court file and tracing a diagonal on the Court file as the direction the child ran.
BY THE COURT: Very well.
BY MR. LOGAN: (Continuing)
Q. Was he running toward the house of your grandmother ?
A. Yes.
Q. In that direction ?
A. Yes, sir.
Q. Did you see the automobile strike Sean?
A. Yes, sir.
Q. Where was Sean when the automobile struck him ?
A. He was on the left side, by the driver’s side and the driver’s side hit him.
Q. How close was he to the other side of the street ?
A. Three or four feet.

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Bluebook (online)
259 So. 2d 480, 1972 Miss. LEXIS 1530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/logan-ex-rel-logan-v-thomas-miss-1972.