McWhorter v. Draughn

Holden, P. J., delivered the opinion of the court. The case is here fox the second time. Upon the former appeal the judgment of the lower court granting a peremptory instruction to find for the defendant was reversed and the case remanded for a new trial. See McWhorter v. Draughn et al., 98 So. page 597, in which decision will be found a full statement of the facts and law of the case. On the second trial below the facts as shown by the evidence were substantially the same as in the first. There was some additional testimony given in the last trial with reference to the defendant having given warning, or attempting to do so, to the plaintiff when he was approaching the chain stretched across the road which caused his injury when his auto ran into it. This additional testimony does- not, however, materially change the facts of the case, because in the former appeal we stated that the warning, attempted to be given when the plaintiff was approaching the chain, would not relieve the defendant of liability if it was guilty of negligence in stretching the chain across the road, but that the failure of the driver of the ear to heed the warning" given would be no more than contributory negligence on his part which would only go to the diminiskrnent of the damages. Now, since the law and facts of the ease are settled in the former decision, and a.s the case now before us is substantially the same as on the first appeal, it is only necessary this time to inquire into whether or not the lower court erred in the refusal or granting of instructions, as the appellant now complains that the lower court erred in refusing to grant a peremptory instruction to the jury'to find for the plaintiff upon the whole evidence in the case and that the court erred in giving certain instructions for the defendant. We shall determine but one point, which will be sufficient to dispose of the appeal, and that is whether [521] or not the plaintiff below was entitled to a peremptory instruction, under the whole proof in the case. We think the law of the case, as announced in the former decision, warrants the conclusion on this appeal that the appellant, plaintiff below, was entitled to a peremptory instruction on the question of liability. A careful reading of the former opinion will make it obvious that we held that the stretching of a dark chain across the public highway six feet above the ground, at dusk, was negligence of itself, and a traveler upon the highway injured by running into the chain is entitled to damages; and the failure of the driver of the car to observe the chain or the warning of its presence, which he ought to have seen but which he claims he did not see, would only be contributory negligence on his part which would go to the diminishment of damages. On the former appeal this court said: “It seems to us it was negligence for the appellees to obstruct the public highway by stretching a chain across it and thus making it unsafe for public travel. This chain stretched across the road six feet from the ground is not a customary .use of the road as would put the burden on the driver to discover the obstruction and stop his car before striking it.' A traveler upon the highway is only charged with the duty of using reasonable care to prevent running into other vehicles and objects which are using; the .road in a reasonable and customary manner. ’ ’ And we further said in the opinion: “And there is other evidence in the case .which may show contributory negligence on his (the driver’s part; but the test as to whether a recovery can be had is whether the appellees were guilty of any substantial negligence which proximately caused the injury.” And any negligence shown on the part of the appellant in failing to see the chain, or any warning attempted to be given him of its presence, was merely contributory negligence which would not defeat the cause of action, [522] but would only reduce the amount of damages. Therefore the liability of the defendant below was conclusively shown by all the evidence in the case, and a peremptory charge to find for the plaintiff should have been granted, and the question of the amount of damages submitted for the determination of the jury. We do not think this point as to conclusive liability of. defendant was raised on the former appeal. The recent case of City of Vicksburg v. Harralson (Miss.), 101 So. 713, discusses the rights and duties of travelers upon the streets and highways, and amongst other things announces the principle that—“The driver may assume the street is reasonably safe for travel, and is not required to use extraordinary care.” The same is true of the public highway, and when it is dangerously obstructed in such an unusual way as appears in this case, the driver cannot be charged with reasonable anticipation of such obstruction. And when the appellees herein obstructed the road in the manner shown by this record, they assumed the responsibility for the injury received by the driver running into the chain. “The open road” is the great privilege given to every traveler in our state and nation, and he may recover for injuries received on account of its wrongful obstruction. The highways of our country, permitting the people to visit from one part of America to another, and thus become better acquainted with each other and the country, is both pleasant and beneficial to the American people; and the public roads of our state should be kept open and reasonably safe for travel, and thus fully and freely serve the purposes for which they were intended. Travelers in a motor vehicle, moving at- a rate of speed within the law and .commensurate with the condition of the road, are necessarily required to'wratch out ahead for many 'different things, some of which are in the roadway and others upon the sides that might come info it, and he cannot at all times direct his attention [523] upon one thing to the exclusion of others, and consequently he is very likely to run into an obstruction, especially such a one as appears in this case, before he has time to see it and stop Ms car. In view of the conclusions reached above, the judgment of the lower court is reversed, and the case is remanded for a new trial in accordance with this opinion. Béversed and remanded.