189 Ky. 628 | Ky. Ct. App. | 1920
Opinion op the Court by
Reversing.
While walking on the streets of Pulton in October, 1918, Lon Adams, a lawyer, was struck by a Ford automobile and knocked down and before he could arise was run over by a lárge car driven by a man by the- name of Donahue and so injured that he lost one leg and was otherwise permanently disabled. He brought this ease in the Fulton circuit court against the owners of the Ford car as well as the driver and also against Donahue to recover damages for his injury. Donahue was a resident at that time of Tennessee and no process was or could be served on him, so before the trial the case was dismissed, as to Donahue without prejudice and prosecuted against the other defendants only. Defendants, H. B:. Parish and Charles Holloway, compose a partnership firm doing an automobile salés and repairing business in that city, and the .other defendant, Gieorge Church, the driver of the Ford car, was in their employ as a mechanic and trouble man.
On the day of the accident Church was driving a small Ford car belonging to Parish and Holloway eastward on Walnut .street. Before he came to the intersection of Mulberry street he observed a large car approaching’ from the east. At this moment the Ford car was near the crossing of the Illinois Central railroad on Walnut and about seventy-five feet from the nearest edge of Mulberry street, while the big car driven by Donahue approaching from the east was about 100 feet from the east side of Mulberry street. Appellant Adams was walking along the pavement on the south side of Walnut street near the intersection of Mulberry street and proceeded to cross Mulberry street to the pavement
A trial of the case resulted in a verdict for the defendants and the injured man appeals, asking a reversal of the judgment for three reasons: (1) The verdict is contrary to and against the law and evidence; (2) the court erred in permitting incompetent and immaterial evidence to be introduced by the defendant and in refusing to allow plaintiff to introduce competent and material evidence in his behalf; (3) the court erred in its instructions to the jury especially in giving instruction No. 5, on the subject of contributory negligence.
There is little controversy about the facts, for it is admitted that appellant Adams was walking along the street at a place he was entitled to be and was exercising reasonable care for his own safety. He testifies that he, as he walked east on Walnut street, saw the big Donahue car coming west on the same street but he calculated that he would be able to cross the street without coming in contact with this big car, so glancing to either side he .proceeded to cross the street without knowing that the Ford car was coming up behind him. There was no other vehicle approaching from either side. The Ford car gave no warning signal. In fact neither of the cars sounded a horn. It may well then be admitted that ap
The brief then proceeds with an argument that Church was not guilty of negligence. The principle of law relied upon is well stated in Moaks Underhill on Torts, as follows :
“The law presumes that an act or omission done or neglected under the influence of pressing danger, was done or neglected -involuntarily.
One of the most interesting cases sustaining the prin - ciple is Laidlow v. Sage, reported in 158 N. Y. 73, 44 L. R. A. 216, and cases there cited.
We regard the principle of law as sound but we doubt if it has application to the facts of this case. If it be admitted that Church was guilty of no negligence whatever, then the principle should be applied, but we think there are many facts in the record which would justify a jury in finding that Church was guilty of culpable negligence, rendering him and his co-defendants liable to Adams for the injury sustained, not alone by being struck by the Ford car, but for all injury which directly and proximately resulted therefrom, and which Adams would not have sustained but for the negligence, if any, on the part of the driver of the Ford car. In other words, if the Ford car negligently knocked Adams prostrate on the street and as a direct result thereof and before he could arise he was run over by the big Donahue car, appellees can not escape responsibility for all the injury suffered by Adams, even though Donahue was also negligent.
Granting* that the streets where the accident happened were of the usual width and that Church, as he testifies, had his car under complete control and was driving at a very slow rate, there were several ways by which the accident to Adams could and should have been avoided. Church admits that he saw the Donahue car approaching from the east along Walnut street at a time when he was at least 75 feet from the intersection of Mulberry street, and wdien the big car was at least 100 feet on the opposite side of Mulberry street. He says he could have stopped his car in 10 feet and that the Donahue car was traveling fifteen or twenty miles an hour. The Donahue car was on the left hand side of the street, wffiere it had no right to be, but there was plenty of room on the other side of the street for the Ford car to have passed without injury to any one because it was not shown that there was another vehicle or
It was the duty of Church as he approached the place of the accident, observing the movements of the big Donahue car, and Adams making his way across Mulberry street, to have exercised every reasonable precaution, consistent with safety to himself, to avoid injury to Adams; and if he failed to perform these duties he and his co-defendants are liable. One of his duties was to sound an alarm so as to have apprised Adams of the approach .of the car if he did not already know thereof. Such a signal no doubt would have averted the accident. From the evidence it appears that the Donahue car would not have struck or injured Adams but for the fact that the Ford ear struck and threw Adams into the street.
As Adams was guilty of no negligence the court erred to his prejudice in instructing the jury as to the law of contributory negligence. It is argued by counsel for appellees that while instruction No. 5 did not correctly state the law, it was not prejudicial and it is also intimated that even though it was improperly given, it could not have prejudiced the appellant’s cause. But since the jury found against appellant it would be utterly impossible to tell whether it did so on account of the erroneous instruction given on contributory negligence or upon one of the othqr instructions presenting the defendant’s theory of the case. On another trial if the evidence is in substance the same as upon the last trial the court will not instruct the jury on the law of contributory negligence.
Judgment reversed for a new trial not inconsistent with this opinion.