Priestley v. Hays

*848 Cook, J., delivered the opinion of the court. The plaintiff instituted this suit in the circuit court of Harrison county against the defendant, for personal injuries alleged to have been sustained by. him in a collision between an automobile which he was driving and a delivery truck belonging to the defendant. There was a verdict and a judgment in favor of the plaintiff for the sum of three hundred fifty dollars, and from this judgment the plaintiff prosecuted this appeal, assigning as error the inadequacy of the damaages awarded, and the defendant prosecuted a cross-appeal, assigning as error the granting of one instruction to the plaintiff and the refusal of two instructions requested by the defendant. The facts which we deem material to a decision of the questions presented are that on the day of the injury ■complained of, the plaintiff was driving eastward on Fifteenth street, in the city of Gulfport, and the defendant’s delivery truck was proceeding westward on the same street. The street was straight at that point, and there was nothing to obstruct the drivers’ clear view of each other, and each observed the other’s approach. A short distance to the west of the point of collision, an unused street car track crossed Fifteenth street at an angle. As the plaintiff approached this street car track, he turned to the left in order to cross it at right angles and thereby more easily drive over it. When plaintiff had crossed this track at right angles, his automobile was thereby placed on the north or left side of the street; and the driver of the defendant’s truck testified that he thought the plaintiff was either going to stop at the north curb or drive into an alley leading from the north side of the street, and that he turned to his left in order to avoid striking plaintiff’s automobile, believing from the appearances that it was necessary to do so. As the defendant’s driver turned to his left, the plaintiff turned to his right, in order to go back to his proper side of the street. The truck driver continued to swerve to his left, while *849 the plaintiff, without attempting to apply his brakes or stop, continued toward the south side of the street, and the two cars collided at or near the south side of the street, resulting in injury to plaintiff and damage to his car. The plaintiff requested, and was granted, the following instructions: “The court instructs the jury for the plaintiff that it was the duty of the defendant’s truck driver, when he was about to meet the plaintiff, to have turned his motor truck to the right of the center of the road or street, so as to have passed without interference. “And the court further charges the jury for the plaintiff if yon believe from a preponderance of the evidence that the injury complained of was caused by the defendant’s motor truck driver neglecting to turn to the right of the center of the road, or street, then you must find for the plaintiff and assess his damage at such sum as will compensate him for the injuries received, if any, and also for the loss of time, if any, from his labors, not to exceed the sum sued for. ’ ’ The court below refused an instruction requested by the defendant which was in the following language: ‘ ‘ The court instructs the jury that if the jury believes from the evidence that negligence of the plaintiff in driving on the wrong side of the street, if he did so drive, forced the driver of the defendant’s truck to deviate to his left, so that the collision occurred on the south side of the street, the fact that said collision occurred on said side of said street is not sufficient in itself to warrant a verdict in favor of the plaintiff.” This instruction for the plaintiff makes it the absolute duty of the driver of an automobile to obey the law of the road and turn to the right of the center of the road or street when meeting another vehicle, without regard to the circumstances with which he may be confronted, or the apparent necessity of turning to the left to avoid a collision; and makes the failure to comply with the *850 letter of the statute a conclusive presumption of negligence, and consequent liability. Section 5781, Hemingway’s Code, provides that when vehicles meet each other going in opposite directions, each driver shall reasonably turn to his rig’ht so as to safely pass; while section 5785, Hemingway’s Code, provides that a violation of this statute creates only a prima-facie presumption of negligence. The driver of a vehicle on a highway is required to exercise ordinary and reasonable care under the circumstances with which he is confronted; and where the failure of one driver to keep to the right of the road when approaching a vehicle driven in the opposite direction makes it reasonably apparent to the driver of the other vehicle that it is necessary to turn to the left to avoid a collision, no finding of negligence of the latter driver may be based upon the deviation when a collision of the two vehicles occurs. The defendant’s whole defense was based upon the theory that it reasonably appeared to the driver of the truck to be necessary to turn to the left to avoid a collision with the plaintiff’s automobile on the north side of the street; and there was testimony on behalf of the defendant to support this theory. Whether the driver of the truck acted in a reasonably prudent manner under all the circumstances in evidence was a question for the jury; but the instruction complained of totally ignores the defendant’s theory and makes his liability absolute if the driver of the truck failed to turn to the rig’ht and as a result thereof the collision occurred. It is admitted that the driver of the truck turned to the left, and that the collision occurred on the south side of the road; and, consequently, this instruction is, in effect, peremptory, and, in our opinion, should have been refused. The refused instruction, above quoted, embodies the defendant’s theory, as testified to by his witnesses, and should have been given, except for the fact that in the first part thereof it assumes as a fact that the plaintiff was negligent in driving on the wrong side of the street. *851 That was a question for the jury to pass upon under all the facts and circumstances in evidence; and the requested instruction was erroneous in assuming as a fact that the plaintiff was negligent in so doing. The defendant also requested a comparative negligence instruction under the provisions of sections 502 and 503 of Hemingway’s Code, and this was refused. Whether, under all the evidence, plaintiff was guilty of negligence which contributed to his injury was, in our opinion, a question that should have been submitted to the jury for decision; and we think this instruction should have been granted. For the errors indicated in these instructions, the judgment of the court below will be reversed and the cause remanded. Reversed and remanded.