HOLLOWAY v. COKER

Leftwich Tubb, of Aberdeen, for appellant. It was error in the court below to overrule defendant's motion for a directed verdict made at the close of plaintiff's case. In cases of this sort there is no presumption of negligence arising merely because an accident has happened and somebody has been hurt as a result thereof. Negligence on the part of the defendant is the basic element of liability and the burden is on the plaintiff to prove from a preponderance of all the evidence in the case the negligence of the defendant before he is entitled to go to the jury. It is true sometimes that negligence may be established by facts and circumstances, but certainly in this case there were no facts and circumstances developed from which the jury would be authorized to conclude that the defendant was guilty of any negligence. It is clearly shown that the little boy ran out into the street immediately in front of the defendant's car within a few feet thereof. That he did everything he could to avoid the accident and that it was impossible to avoid it. The testimony was not sufficient even at the close of plaintiff's case to sustain a verdict for plaintiff on the question of liability. The court committed error in not directing a verdict for the defendant. It was error in the court below to overrule defendant's motion for a directed verdict made at the close of all the evidence in the case. Since there is no dispute of the testimony of the three persons who were eye witnesses, who had personal knowledge of the manner in which the accident occurred, and since this testimony does not make out any case of liability against the defendant, most assuredly the trial court should have sustained the defendant's motion for a directed verdict made at the close of all the evidence in the case. Paine Paine, of Aberdeen, for appellee. We respectfully submit unto the court that substantial justice has been performed in the trial of this case. A small child, either a little under or over five years of age, has been seriously injured by the appellant in the operation of an old antiquated automobile at or within a few feet of the public crossing at the intersection of these two streets, and it makes no difference how fast the automobile was going or how slow, but if due to the negligence of the appellant he failed to have his automobile under control as he approached the intersection of these two streets and with full knowledge on his part of the frequency with which these two streets were used by children, then the appellee made out a case which was properly submitted to the jury and the small judgment of $1250.00 should be affirmed. We also submit to the court that a cursory reading of the record will disclose to the court that it was purely a question of fact to be submitted to a jury as to whether this old man, in the condition in which he admits that he was with reference to his eyesight and with his reputation for being a careless automobile driver, at the time he approached and turned this street intersection, had his automobile under control so as to prevent injury to children using the crossing, which children he had seen before he approached this crossing. The question involved on this appeal, admitting as true all the facts testified to by appellee's witnesses, presents to the court the question of the liability of the driver of an automobile for injury to a child of such tender years as to be incapable of comprehending and understanding the danger of crossing streets. Babbitt Motor Vehicle Law (4 Ed.), p. 1347, sec. 1861, p. 1352, sec. 1864, p. 1356, p. 1641, sec. 2267; Ulmer v. Pistole, 115 Miss. 485; Daniel v. Livingstone, 168 Miss. 311; McDonald v. Moore, 159 Miss. 326; Avery v. Collins, 171 Miss. 636. Argued orally by C.L. Tubb, for appellant, and by Thos. F. Paine, for appellee.