Partlow v. McDonald
| Docket Number: | 2002-CA-01309-COA Linked Case(s): 2002-CT-01309-SCT ; 2002-CT-01309-SCT ; 2002-CT-01309-SCT ; 2002-CT-01309-SCT ; 2002-CA-01309-COA ; 2002-CA-01309-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-23-2003 Opinion Author: Griffis, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Liability of driver - Proper lookout - Speed limit - Duty of driver - Section 63-3-1105 Judge(s) Concurring: McMillin, C.J., Southwick, P.J., Bridges, Thomas, Lee, Myers and Chandler, JJ. Dissenting Author : Irving, J. Dissent Joined By : King, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 05-01-2002 Appealed from: Lee County Circuit Court Judge: Thomas J. Gardner Disposition: DIRECTED VERDICT IN FAVOR OF DEFENDANT Case Number: 98-231(G)(L) |
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| Party Name: | Attorney Name: | |||
| Appellant: | Gloria Partlow, Personal Representative of The Heirs of The Estate of Sonya L. Partlow, Deceased |
BRIAN H. NEELY |
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| Appellee: | Rickey McDonald | BRIAN DOUGLAS MAYO WADE G. MANOR |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wrongful death - Liability of driver - Proper lookout - Speed limit - Duty of driver - Section 63-3-1105 |
| Summary of the Facts: | Sonya Partlow died after she was struck by a vehicle operated by Rickey McDonald. Gloria Partlow, as the personal representative of Sonya Partlow’s estate, filed a wrongful death action. The court granted McDonald's motion for directed verdict on the issue of liability, and Partlow appeals. |
| Summary of Opinion Analysis: | Partlow argues that McDonald failed to pass a three-prong test cited in Smith v. Walton, 271 So. 2d 409, 409 (Miss. 1973), regarding the liability of a driver towards a pedestrian along the highway. The three parts of this test include: the driver must have kept a reasonable lookout; the driver must have been traveling at a reasonable and proper rate of speed under the prevailing weather conditions; and he must have given warning of his approach if found to be reasonably necessary. Partlow argues that McDonald failed to keep a proper lookout because Sonya was walking on the side of the road, and McDonald had a duty to be on the lookout for pedestrians on the shoulder. Nothing supports Partlow's contention that the decedent was walking on the shoulder of the highway. In addition, the duty to keep a proper lookout also includes looking out for other cars on the road. Partlow also argues that McDonald's speed on the acceleration ramp could not have been reasonable because there was no posted speed limit. The officer testified that he estimated McDonald's speed to be approximately 55 miles per hour. The posted speed limit on Highway 45 is 65 miles per hour. The court correctly determined that McDonald's speed was reasonable. With regard to the duty to give a warning of approach if necessary, Partlow fails to describe how this element was violated. Section 63-3-1105 establishes that while the driver of a vehicle has a duty to exercise ordinary care on highways and watch for pedestrians walking along the side, pedestrians also have a duty to yield the right-of-way to oncoming traffic if they wish to cross a highway. McDonald breached no duty to the decedent. He was traveling at a proper rate of speed, and ascertained that the road was clear before he began to merge onto Highway 45. He then looked for oncoming traffic and in that instance the decedent crossed the road striking McDonald's vehicle. |
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