
    West, Minor By Next Friend v. Armstrong
    No. 42841
    January 27, 1964
    159 So. 2d 805
    
      Talbot, Sullivan & Dunbar, Clarksdale, for appellant.
    
      Brewer, Brewer & Lueltett, James II. Phyfer, Clarksdale, for appellee.
   Lee, C. J.

This lawsuit grew out of a claim by Larry Gr. West, a minor by next friend, against N. Armstrong to recover damages for personal injuries sustained by bim on account of tbe alleged negligence of tbe defendant, resulting from tbe collision of their automobiles at a street intersection in tbe City of Clarksdale.

Tbe trial court, at tbe close of tbe plaintiff’s evidence, granted tbe requested instruction to tbe jury to find a verdict for tbe defendant. Tbe plaintiff appealed from tbe judgment of tbe court, and assigned tbat action of tbe trial court as reversible error, contending tbat tbe evidence made an issue for decision by tbe jury.

The Court, under numerous decisions and in tbe state of tbe present record, must consider as true tbe evidence for tbe plaintiff and all logical inferences to be drawn therefrom. Adhering to this rule, tbe evidence and its logical inferences were to tbe following effect:

This collision occurred near tbe intersection of East Second and Sharkey Streets. East Second, as tbe name implies, runs east and west, and Sharkey runs north and south. Traffic on East Second has tbe right of way over tbat on Sharkey. Cars on tbe latter must stop for traffic on East Second. Tbe plaintiff, a seventeen year old boy, about 7:30 P.M. on April 5, 1962, in a Chevrolet car, was proceeding west on East Second, with tbe lights on and at a speed of 20 to 25 miles an hour. On tbe north and south sides of East Second and adjacent to tbe intersection were situated tbe Methodist Church and Powers Store, respectively. Tbe street was paved for a width of 35 feet. It was somewhat congested, cars being parked on both sides and both regularly and irregularly. It was a dark evening* and rain was falling. As tbe plaintiff'was approaching in close proximity to tbe intersection, “at tbe corner of Powers Store” two lights came up in front of bim, although lie could not explain exactly what happened immediately thereafter, at the precise moment of the impact. In another way he stated that when the two lights loomed up in front of him, he did not remember anything- else until he later got out of the car.

A traffic officer, who went to the scene, testified that, with cars parked as they were, only about 22 feet remained for traffic before the collision; and that after the Ford station wagon had been moved, cars could proceed eastward. He further testified that, while no center line was actually marked on the pavement, yet, according- to an imaginary center line, he found the debris and most of the Chevrolet on the north side of the line; and that the disabled Chevrolet was in its original position, following the wreck, and that it was a total loss.

Nathaniel Armstrong, the driver of the Ford, stated to the officer there on the scene that he was making a right-hand turn from Sharkey and headed east on Second Street. Larry West stated that he was traveling-westward on East Second.

There was evidence to show that the plaintiff sustained physical injuries, hut the extent thereof is not detailed in view of the disposition of the case at the time of the trial.

The two lights, appearing or looming before the Chevrolet, indicated either that a car was standing in the street without lights and they were suddenly turned on, or that it turned right or left from Sharkey. But the defendant’s statement to the officer on the scene was that he was turning to the right from Sharkey. Obviously the congested East Second Street, due to indiscriminate parking- of automobiles on both sides, increased the danger of collision by the automobiles with one proceeding west and the other turning- to the east from the intersection.

From the foregoing statement, it is obvious that the jury could have reasonably believed that the appellant, in compliance with the speed statutes, with his lights burning and in his proper lane of traffic, was struck as he reached the intersection, or was in such close proximity thereto as to constitute a hazard, because the defendant, in making his right turn into the intersection, crossed over the middle line of Second Street and struck the left front of the Chevrolet with the left front of his Ford. Such a finding might have been warranted by the appellee’s violation of Section 8189(a) of the Code, that is, to approach and make the right turn as closely as practical to the right-hand curb or edge of the roadway, or the appellee’s failure to obey Section 8197(h) of the Code in either failing to stop or not yielding the right of way to an approaching vehicle within the intersection, or approaching so closely as to constitute an immediate hazard. The position of the debris and the Chevrolet might have induced the jury to believe, although not necessarily, that the appellee negligently struck the appellant’s car on the latter’s proper side of the street.

Of course circumstantial evidence is sufficient to make a case, if it meets the test set out in Johnston v. Canton Flying Services, Inc., 209 Miss. 226, 46 So. 2d 533, Farish et al v. Canton Flying Services, Inc., 214 Miss. 370, 58 So. 2d 915, Magnolia Petroleum Co. v. Stinson, 230 Miss. 533, 93 So. 2d 815, and the cases there cited.

Besides, where a case turns upon circumstantial evidence, it should rarely be taken from the jury. Kurn v. Fondren, 189 Miss. 739, 198 So. 727; Cameron v. Hootsell, 229 Miss. 80, 90 So. 2d 195.

Since the evidence and the logical inferences make an issue for the jury, the court was in error in granting the peremptory instruction. Consequently the cause is reversed and remanded.

Reversed and remanded.

Gillespie, McElroy, Jones and Brady, JJ., concur.  