Teche Lines, Inc. v. Danforth

12 So. 2d 784, 195 Miss. 226, 1943 Miss. LEXIS 116

• Court: Mississippi Supreme Court
• Decided: April 5, 1943
• Docket: No. 35252.
• Status: Published

Opinions

Griffith, J.,

delivered the opinion of the court.

This case involves the proper and permissible interpretation of Sec. 90, Chap. 200, Laws 1938, known as the uniform highway traffic regulation act. This section reads as follows:

“ (a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of 200' feet in each direction upon such highway.

“(b) This section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving- such disabled vehicle in such position. ’ ’

The facts, so far as material to the point to which we shall confine this opinion and decision, are that appellant is an authorized carrier of passengers by motor bus, and on the occasion in question stopped its bus to let off a passenger in pursuance of its established custom and duty in such cases. The pavement of the highway was 20 feet wide, and according to the overwhelming weight of the evidence the shoulders on each side were about Sy2 feet wide, making a total width of 27 feet. The stop was made about halfway down an incline approximately 1100 feet long. The bus was about eight feet wide, so that when some room was left to the passenger to alight on the shoulder, and not in the ditch, it was impossible to leave 20 feet clearance opposite the bus. While the passenger was making his way out of the bus, appellee’s decedent ran into the rear of the bus and suffered injuries from which he died.

The trial court granted appellees the following instructions :

“The Court instructs the jury for the plaintiffs that if you believe from the testimony in the case, that the bus. of the defendant was stopped upon the paved or improved or main traveled part of Highway 11, not in an emergency, at a place and time and in such way as not to leave a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing bus or vehicle, then such stopping of said bus or vehicle at such time and place, and under such condition, if you be lieve it was so parked, was a violation of the law and negligence, and if you further believe from the testimony that such negligence, if any, proximately caused or contributed to the injury and death of the deceased, then the defendant is liable, and it is your duty to find and return a verdict for the plaintiffs.”

The quoted instruction, as may be readily seen, amounts to a peremptory charge in favor of the plaintiff. It tells the jury that if less than 20 feet clearance was left by the bus, this was negligence. The instruction did not permit the jury to say whether it was possible or practical to leave that much, and, as a matter of fact, by the overwhelming evidence, as already stated, it was not even possible much less practicable. It did not permit the jury to say whether the bus was stopped fis far to the right on the highway as was possible, and at the same time safe, considering the high degree of care which the bus driver owed to the passengers, including the one then about to alight.

The central principle which runs through all the cases dealing with statutes regulatory of highway traffic is that such statutes must have a practical or workable interpretation, not an arbitrary or unreasonable construction, and never that which would require an impossibility; and this has been the rule from the earliest enactments of such statutes down to this day. We do not prolong this opinion by going into a review of pertinent cases from other states. Hundreds of them are cited and annotated in the elaborate note found in 131 A. L. R., pp. 562 to 607, among which we might mention Kelly v. Locke, 186 Ga. 620, 198 S. E. 754, as particularly persuasive. No case has been cited by appellee, nor have we found any, which under its particular facts would sustain the quoted instruction under facts such as are presented by the record here before us. Even the Minnesota case, Ball v. Gessner, 185 Minn. 105, 240 N. W. 100, of which so much has been made, and which is inaccurately annotated in Vol. 11, Nniform Laws Annotated, at page 48, does not under its facts or under all the language used by the court sustain any such technical interpretation of the statute, or any such hard and fast instruction as was given to the jury in the case at bar. Ball v. Gessner, supra, did not involve a vehicle temporarily stopped for a legitimate or necessary purpose as an incident to travel, but there the truck was parked in the road while the driver was holding a ten-minute conversation with a person over on a roadside farm. As the facts show, and as we shall later mention, we are not dealing in the present case with a parked vehicle.

And we do not need to go to other states for the principle which is to be applied. In Boyd v. Coleman, 146 Miss. 449, 111 So. 600, there was the case where damages were claimed for the non-issuance of automobile tags during the month of December, as required by statute. The defense was that no tags were available during that month and that it had been impossible to obtain them until January 6th. The court held that although plainly there had been a technical violation of the statute it was not actionable because of the impossibility of compliance therewith. The court said: “The law does not require doing of an impossible thing, and statutes should not be construed to require performance of duties which are rendered impossible of performance by reason of causes for which person is in no way responsible and powerless to change or remove.” And the court said further, and in language which precisely fits this ease: “All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the Legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter. . . . It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. . . . This is not a substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include the act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the Legislature intended to include the particular act.” See, also, Byrd v. Byrd, 193 Miss. 249, 8 So. (2d) 510, 512.

In one of our latest cases, Zeigler v. Zeigler, 174 Miss. 302, 303, 310, 164 So. 768, citing numeous other cases in this state it was held that unthought-of results or those which would lead to absurdity will be avoided in the interpretation of statutes, although within the technical terms of the statute, if possible to find-a reasonable construction which will avoid such results.

"While admitting’, as must be admitted, that impossibilities are not required by any statute whatever its subject, it has been argued that when impossible to stop so as to leave as much as 20 feet clearance, the vehicle must keep going until a place may be found where the required clearance can be left, and that argument has proceeded so far as to say that if this require a going forward of ten miles or even farther, this must be done or else the statute would be violated.

This court may, and it is its duty to, take judicial knowledge of what everyone knows who has been beyond his own door sill, that at least 85 % of the public highways of this state are of such width that it is only occasionally possible, and this often at distant intervals, to stop a vehicle so as to leave as much as twenty feet of unobstructed highway to the side of the vehicle. To give the statute in question the literal or hard and fast construction for which appellees contend would lead to unthought of and absurd consequences, which every experienced member of the legislature would be bound to disclaim as ever having been in his mind as a deliberate conclusion. It is enough to say of this that if such a construction could be sustained and enforced, it would dislocate and put out of business the rural mail delivery service on not less than 75% of the rural routes in the state, and a husband could not pick up his wife trudging’ homeward from the rural grocery store in the rain, or even to attend to a wounded or sick person found on the roadside.

Illustrations of the absurdity could be extended almost without limit; but we pursue this branch of the discussion no further than to quote from the opinion in Colvin v. Auto Interurban Co., 132 Wash. 591, 598, 232 P. 365, 368, wherein the court said: “We know that on many of our highways one would be required to run his automobile mile upon mile before a place could be found where the machine could be entirely removed from the pavement. The statute must.be given a reasonable and workable construction. If there is proper excuse or necessity for stopping the car, it will be sufficient, if a reasonable effort be made to get it entirely off the main traveled portion of the road, or as nearly so as the circumstances will permit."

Aside from absurdity or unthought of consequences, we may advance a step,- and a very vital step, further, and to the following' inescapable consideration: “The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right in so doing to use the ordinary and usual conveyances of the day; and under the existing modes of travel includes the right to drive a horse-drawn carriage or wagon thereon, or to operate an automobile thereon, for the usual and ordinary purposes of life and business.” Thompson v. Smith, 155 Va. 367, 154 S. E. 579, 583, 71 A. L. R. 604, 610. There seems to be no dissent among the authorities on this proposition. See 11 Am. Jur. Constitutional Law, Sec. 329, p. 1135, and the language of the court in Pinkerton v. Verberg, 78 Mich. 573, 44 N. W. 579, 7 L. R. A. 507, 18 Am. St. Rep. 473.

The right to travel means, of course, the right to go from one place to another. It includes the right (1) to start, (2) to go forward on the way, and (3) to stop when the traveler’s destination has been reached. To speak to the first two of these as fundamental rights without including the third would be to descend again to the absurd, and so far as the instant case is concerned that is what we have here. But we do not so limit the right. We affirm that it includes the right to stop on the way, temporarily, for a legitimate or necessary purpose when that purpose is an immediate incident to travel. So it is that the texts and authorities declare that the right to stop when the occasion demands is an incident to the right to travel, a proposition so completely self-evident that no authority] is necessary to sustain it, and which we would pronounce irrefutable, had it never heretofore been mentioned. But here are some of the authorities which do declare and sustain it. 2 Blashfield Automobile Law, Perm. Ed., sec. 1191, p. 321; Fulton v. Chouteau County Farmers’ Co., 98 Mont. 48, 37 P. (2d) 1025; Morton v. Mooney, 97 Mont. 1, 33 P. (2d) 262, 263; Albrecht v. Waterloo Const. Co., 218 Iowa, 1205, 257 N. W. 183. When, then, the right to stop is arbitrarily or unreasonably restricted or cut off by statutory enactment, the statute is as objectionable from a constitutional standpoint as had the enactment prevented going forward.

The rights aforesaid, being fundamental, are constitutional rights, and while the exercise thereof may be reasonably regulated by legislative act in pursuance of the police power of the state, and although those powers are broad, they do not rise above those privileges which are imbedded in the constitutional structure. The police power cannot justify the enactment of any law which amounts to an arbitrary and unwarranted interference with, or unreasonable restriction on, those rights of the citizen which are fundamental. State v. Armstead, 103 Miss. 790, 799, 60 So. 778, Ann. Cas. 1915B, 495.

Since, as already mentioned, this court must take judicial knowledge of what everybody knows, namely, that at least 85% of the public highways in this state are of such width that it is only occasionally possible, and this at distant intervals, to stop a vehicle so as to leave as much as twenty feet of unobstructed highway, which would mean that over long stetches of our public roads no vehicle could stop without violating the law, if that clause in the statute which requires that in any event twenty-foot clearance shall be left is to be enforced according to its literal terms, detached from the remainder of the statute, the result would be an unreasonable and arbitrary abridgment of the right to travel, thus rendering the statute unconstitutional when so interpreted, and to the extent so interpreted.

The rule is without exception that when the court is confronted with a statute a literal construction of which would render it unconstitutional, the court must adopt such a construction, when reasonably possible, as will save the statute, and at the same time save every savable provision or term in it. This can be done as to this statute by giving the word “practical” in subsection (a) an operation throughout the entire section, and by preserving as referable to the words, “in any event,” the provision that, when possible, a clear view for 200 feet shall be available. It is reasonable to require a vehicle to go forward so that a clear view of it for 200 feet may be available, if possible to do so, while it would be arbitrary and unreasonable to require it to keep going whatever the distance might be, until a twenty-foot clearance could be had. And if a vehicle gives all the clearance it possibly can, and at the same time a clear view of its position for 200 feet, if possible, this is a reasonable and adequate provision for safety, requiring nothing arbitrary, whereas to say that regardless of the view of 200' or even 500 feet, the clearance of the side must, in any event, be twenty feet, is unreasonable and arbitrary as applied to the public road situation in this state.

It has been suggested that to save the statute from collision with constitutional fundamentals we should, instead of the construction which we are adopting, rewrite the section in question so that it will include only busses and other vehicles using the highways for hire, leaving all others free from the provisions of the section. There are several answers to this, but one is enough. To each vehicle operated for hire there are'more than a thousand owned and operated privately. To free a thousand in order to hold one would indeed be an eccentric judicial operation. To use a homely illustration, it would be to cut off the tail and hold firmly to that, while letting the animal go. We can impute no such intention to the statute. Plainly it applies to all vehicles — busses, trucks, automobiles, buggies and wagons. Eather than resort to the stated suggestion, it would be more reasonable to read the term “stop” as having substantially the same meaning as its associated terms, “park, or leave standing;” but we do not find it necessary to go even so far as that. Eather, we can go along down the statute as a whole, and say that it was intended to have an arbitrary or unreasonable construction when applied to any and all vehicles, and applying it also to stopping; and that is what the courts have said in case after case which has arisen under this statute in other states which have it, or similar enactments.

Our ruling is that when twenty feet of clearance is impossible, the vehicle shall turn as far to the right as practical including sound and safe shoulders, but must not stop upon any part of the traveled highway unless and until at least 200 feet clear view is available in each direction from the point where the stop is made, save when the vehicle is disabled, as provided for under subsection (b); and save, further, when on account of obstructions or equivalent conditions ahead, it is impossible, to proceed so as to leave the 200 feet of clear view; and that all this is for the determination of the jury, instead of being taken away from them, as was done here.

We pretermit all other questions raised in this case. We have preferred to confine this opinion to the one issue presented by the quoted instruction and the error therein. And it must be noted that we have not decided anything’ about the parking of vehicles or leaving them standing. For anything about the feature mentioned in Kelly v. Locke, supra, that a driver may be required to go forward to a place where there is an available and safe space, sufficient to allow a compliance with all the literal terms of the statute, if within a reasonably short distance ahead, and if such place be known to, or observable by, the driver in the exercise of a reasonable diligence. The feature mentioned in the foregoing sentence was not submitted to the jury by the quoted instruction, but in fact by the import of the instruction was taken from the jury, even if there had been evidence sufficient to go to the jury on that issue.

Reversed and remanded.