
    Mayes SNYDER, Plaintiff, v. MALONE & HYDE, INC., et al., Defendants.
    No. DC 76-70-S.
    United States District Court, N. D. Mississippi, Delta Division.
    April 22, 1977.
    John Booth Farese, Farese, Farese & Farese, Ashland, Miss., for plaintiff.
    Jerome C. Hafter, Lake, Tindall, Hunger & Thackston, Greenville, Miss., for plaintiff-intervenor.
    William O. Luckett, Luckett, Luckett, Luckett & Thompson, Clarksdale, Miss., for Malone & Hyde and Jackson.
    Elzy J. Smith, Jr., Sullivan, Smith, Hunt & Vickery, Clarksdale, Miss., for Lyonel R. Gilmore.
   MEMORANDUM OF DECISION

ORMA R. SMITH, District Judge.

The defendant Lyonel R. Gilmore (Gilmore) has filed a motion for summary judgment in which he contends that there is no genuine issue as to any material fact in the case relative to his liability for plaintiff’s injuries and that he is entitled to adjudgment as a matter of law. The court has considered the motion on the pleadings, affidavits and depositions filed, and memoranda of the parties.

The record reflects that on the occasion in question, Gilmore stopped his vehicle and left it parked on a public highway in violation of Miss.Code Ann. § 63-3-903 (1972) which statute governs the stopping or parking of vehicles on any highway in' the state outside of a business or residence district. Although conceding for the purpose of the motion a violation of the statute, Gilmore contends that the stopping or parking of the vehicle on the highway was not a proximate cause of plaintiff’s injuries.

The deposition of plaintiff was taken by Gilmore. Plaintiff testified that at the time of the accident it was snowing and there was some ice and snow on the surface of the highway; that as he traveled south in his right traffic lane, at a time when he was driving at from 30 to 40 miles per hour, the tractor-trailer combination vehicle of defendant, Malone & Hyde, driven by its truck driver Samuel N. Jackson (Jackson) approached him rapidly from the rear and pulled over into the other lane to pass, when the passing vehicle met an approaching pickup truck; that a collision occurred between the passing vehicle and the pickup and that the passing vehicle struck his automobile at about the same time.

Plaintiff further testified that he saw the Gilmore vehicle before the accident but could not tell whether the vehicle was moving or stopped. He stated that his automobile was knocked down the highway as a result of the collision, but the Gilmore vehicle was 40 to 50 yards beyond the point on the highway from where his vehicle came to rest. Plaintiff testified that while he knew prior to the accident that he was gaining on the Gilmore vehicle, he had not changed the speed of his automobile because of the presence of the Gilmore vehicle on the highway.

Gilmore argues that under the version of the collision adopted by plaintiff there can be no liability on his part for the collision because the presence of his vehicle on the highway did not in any way cause or contribute to the collision.

Plaintiff filed a responsive pleading to Gilmore’s motion, seeking a delay in the consideration of the motion until the parties could take Jackson’s deposition. This delay was granted and Jackson’s deposition was taken and is now before the court. Plaintiff has not filed a reply memorandum as permitted by the rules of the court. Jackson and Malone & Hyde have responded to the motion and vigorously oppose the granting of summary judgment. They contend that Jackson’s version of the accident is entirely different from that of Gilmore thereby creating disputed facts for jury determination.

Essentially Jackson’s version of the incident is the exact reverse of Gilmore’s version. Jackson testified that he was driving south along the highway, at a moderate rate of speed, when plaintiff, who had been trailing him for some time, undertook to pass; that plaintiff pulled into the passing traffic lane, but was soon forced to return to his own traffic lane because of approaching traffic; that upon returning to his lane, plaintiff began to reduce the speed of his vehicle and that this caused Jackson to brake more sharply than he would otherwise have done so that the sharp braking of the vehicle caused it to jackknife and Jackson lost control of the vehicle; that the vehicle collided with the approaching pickup truck and plaintiff’s vehicle.

Jackson saw the Gilmore vehicle for some distance as he approached the accident scene and was reducing his speed in anticipation of coming upon the vehicle when plaintiff attempted to pass. Jackson attributes the jackknifing of his vehicle to the passing by plaintiff of his vehicle and returning to the lane of traffic in front of him, reducing speed because of the presence of Gilmore’s vehicle.

There is beyond doubt a genuine issue as to the cause of the accident. The only question which concerns the court is whether the issue is material to Gilmore’s defense, that is, whether the stopping or parking of the vehicle on the highway in violation of law had a causal connection with or proximately contributed to the accident.

The United States Court of Appeals for the Fifth Circuit discussed the granting of summary judgments in negligence cases in Gross v. Southern Railway Company, 414 F.2d 292 (1969). There, the court said speaking through Judge Skelton, Judge of the Court of Claims, sitting by designation as a member of the panel:

Rule 56 is a valuable rule that is useful in the speedy disposition of cases where there is no issue to be tried. However, it is rarely used in negligence cases. There is a general rule that has been followed and approved by this court many times to the effect that issues of negligence, contributory negligence and proximate cause, the resolution of which requires the determination of the reasonableness of the acts and conduct of the parties under all the facts and circumstances of the case, cannot ordinarily be disposed of by summary judgment.

414 F.2d at 296.

Also, the court stated further:

It is also well settled that in considering a motion for summary judgment, the court has no duty or function to try or decide factual issues. Its only duty is to determine whether or not there is an issue of fact to be tried. [Citations omitted] Furthermore, all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. [Citations omitted] Also, all doubt as to the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment.

414 F.2d at 297.

When considered in light of the Fifth Circuit’s pronouncement in Gross, the court has concluded that the motion should not be granted but the issues of negligence submitted to the jury.

An appropriate order is being entered.  