Denman v. Spain

242 Miss. 431,135 So. 2d 195 (1961).


Denman (P) was injured in a head-on collision with a car driven by Ross (D). D was killed. P sued the executrix of Ross' estate, Spain (D1). P was riding in the car that collided with D. Three people died in the accident. P and a passenger in D’s car had no recollection of how the collision occurred. Evidence showed that at the time of the accident, it was dusk and both rainy and foggy. P introduced pictures of the position of the cars after the collision, but these did not show the point of impact between the two cars. P introduced testimony that another driver had observed D driving at a high rate of speed 3/4 miles from the accident site. A second driver testified that he had also been passed by D at a high rate of speed 200 yards from the accident, but that D had returned to the correct side of the road after passing him. In both instances, D’s speed was estimated at 75-80 mph. The second driver saw D's taillights until the accident. P rested the case; the jury could find that D was operating his vehicle at a negligently excessive rate of speed in poor weather conditions and that if D had been driving his car properly, the collision probably could have been avoided. The jury found for P. The judge granted D's motion for a judgment n.o.v. P appealed.