198 Ky. 17 | Ky. Ct. App. | 1923
(Opinion op the Court by
Reversing.
On April 5, 1915, Miley Baskett and Browning Held, each in a separate machine, were driving west on Fifth street in the city of Owensboro at a high rate of speed. When they approached the intersection of Fifth and St. Ann streets, Ernest Coombs, a boy fifteen years of age rode his bicycle around the comer and proceeded west on Fifth street. After going a short distance he was struck and killed by the automobile driven by Held.
This suit was brought against both Baskett and Held by the boy’s administrator to recover damages for his death. The trial resulted in a verdict and judgment for $10,000.00 in favor of plaintiff. The defendants appeal.
The joint answer not only denied the allegations of the petition, but pleaded contributory negligence in appropriate terms. ' The plea of contributory negligence was not controverted by reply or otherwise. At the conclusion of the evidence for the appellee, appellants moved for a peremptory instruction which was refused. After the trial they made a motion for a judgment notwithstanding the verdict, which motion was also overruled. As the plea of contributory negligence was not denied, it is clear that the motion for a peremptory should have been sustained, but it does not follow that the motion for a judgment notwithstanding the verdict also should have prevailed. It has long been the rule in this state that where a party asked for a peremptory instruction, which, because of the condition of the pleadings, should have been granted, he is not thereafter entitled to a judgment notwithstanding the verdict, but only to a new trial for the error of the court in refusing the peremptory. Connecticutt Fire Ins. Co. v. Moore, 154 Ky. 18, 156 S. W. 867; L. & N. Ry. Co. v. Johnson, 168 Ky. 351, 182 S. W. 214.
Appellant, Baskett, is also entitled to a new trial on another ground. The theory on which it is sought to hold him liable is that while Held was slowing down his ma
Judgment reversed and cause remanded for a new trial consistent with this opinion.