311 Ky. 837 | Ky. Ct. App. | 1950
Affirming
Appellant assigns nine alleged errors in support of its contention that the judgment awarding appellee, as administratrix de bonis non, $10,000 for the death of her son, J.ack Maupin, should be reversed.
They are:
The Trial Court erred (1) in overruling appellant’s motion for a peremptory instruction; (2) in overruling appellant’s motion to set aside the swearing of the jury and continuing the ease because of the improper conduct of one of the jurors; (3) in overruling appellant’s motion to set aside the swearing of the jury and continue the case when it appeared in evidence that the deceased was a patron of a poolroom operated by one of the jurors; (4) in admitting incompetent evidence.; (5) in overruling appellant’s motion to quash and suppress incompetent evidence; (6) in overruling appellant’s motion to set aside the swearing of the jury and continue the case because of incompetent questions propounded and improper statements made by counsel for appellee; (7) in not instructing the jury on the whole law of the case; (8) in failing to grant a new trial because the verdict is flagrantly against the evidence; and (9) in refusing to permit appellant to prove by the jurors that the verdict was arrived at by lot.
On the night of May 15, 1947, decedent, his brother Lloyd Maupin, and William Brock purchased tickets and were accepted as passengers for a ride on the Whip. Evidence for appellee shows that within a short time appellant’s agent in charge of operating the device released the clutch, and the platform and tubs commenced ■revolving on their respective axes; the mechanism attained a speed from fifty to one hundred per centum in excess of previous operations and customary speeds attained on similar devices; the seat in which appellee’s decedent was riding appeared suddenly to have stopped and to have risen from its track, whereupon the deceased was thrown ten or twelve feet horizontally and approximately ten feet above the level of the revolving platform against one of the iron upright angle bars with
Appellant’s testimony is to the effect that the decedent, of his own will and power, arose' to a standing position in the seat, placing himself in an unsafe position; and, it appeared to them, that he jumped from the tub instead of being propelled from it. They additionally testified that the mechanism was in perfect working condition and was being operated at the usual rate of speed and that no similar accident ever had occurred. One witness for appellee testified that she smelled whiskey on the breath of the operator of the Whip. There is no evidence to support appellant’s insinuation that the decedent was under the influence of intoxicating liquor at the time of the accident.
In support of the first contention, viz., that appellant was entitled to a directed verdict, it is argued that there was no allegation or proof that the injury or death of the decedent resulted from any breach of duty owed him by appellant. Appellee alleged in her petition that the negligent operation of the device was the proximate cause of her decedent’s death. It certainly was the duty of appellant to use ordinary care in the operation of the device to prevent injury to its passengers. If, as witnesses for appellee testified, the device was being operated at a high rate of speed and suddenly stopped, and by reason of either excessive speed or sudden stopping the decedent was hurled from his seat, negligence in operation was manifest. In addition to that, the uncontradicted physical facts support appellee’s theory of the cause of the accident. The point of impact with the angle bar was ten or twelve feet in horizontal, and ten feet in vertical, distance from the tub where decedent was riding. Decedent struck the bar with such force as to bend it and break his own neck. It is inconceivable that a person could jump for such distance,
The contention in respect to improper conduct of one of the members of the jury is based on the showing that the juror, during adjournment for lunch, went to the table where the administratrix, her attorneys, and some of her friends were seated. The juror shook hands with appellee and engaged in a conversation with her and some of her friends. There is not even a suggestion that the case was discussed or that any improper statements were made by either the administratrix or the juror. In the absence of such a showing, we are inclined to believe that the conduct of the juror would not have justified the court in sustaining appellant’s motion. It is claimed that the same juror made notes during the trial and that such conduct was prejudicial to appellant’s rights. Nothing appears in the record supporting this contention except that appellant’s attorney, during the progress of the trial, informed the court that he observed the juror taking notes. The court promptly offered to admonish the jury not to take notes but the attorney requested the court to refrain from such admonition. Under these circumstances we think the alleged misconduct of the juror has not been properly certified to us.
The basis of the third contention is not fully borne out by the evidence. It is true that it was shown that the decedent stopped at a poolroom operated by'one of the jurors and remained there fifteen or twenty minutes before going to the Carnival on the night he was killed; but it was not shown that the decedent himself had ever been to the poolroom before or even knew the proprietor.
To recite the evidence objected to would unreason
The question, answer, and statement of counsel strenuously objected to as the sixth ground for reversal was directed to the county coroner who is a doctor of medicine. He testified as to wounds and bruises produced on the decedent’s body and that they caused his death. He was then asked if he examined “a boy by the name of Brock,” who, it will be remembered, was one of decedent’s companions at the time of the accident. The coroner answered this question in the affirmative and was then asked to call Brock’s first name. WGhen counsel for appellant objected, the court asked “What is the point about Brock?” Counsel for appellee then stated “Going to show that Brock was cut all to pieces, bruised him.” At this point, counsel for appellant moved the court to set aside the swearing of the jury and continue the case “because of the conduct of plaintiff’s counsel with reference to Brock.” This motion was overruled. Later Brock testified that he was injured in the accident, but that answer was excluded
From what we have said, it is apparent that the verdict is not flagrantly against the evidence which leads us to the consideration of the contention that the court erred in its instructions to the jury.
The cause of action set out in the petition was based solely on negligent operation of the Tilt-a-Whirl or Whip. All of the testimony concerning negligence supports this theory and none other; nevertheless, the court did not instruct the jury on negligent operation but instructed on the negligence of appellant in failing to maintain the device in a reasonably safe condition to prevent injuries to persons using or riding it. Since there was neither pleading nor proof of this character of negligence, it was error for the court to instruct on it, and of course such error was vitally prejudicial to appellant’s substantial rights.
Since the case must be'reversed because of the error in the instructions, it is unnecessary for us to determine the complaint that the court erred in overruling appellant’s motion to be permitted to introduce the jurors as witnesses in support of its motion for a new trial based on the ground that the verdict was arrived at by lot. It is not likely that this question will be presented on the next trial.
The judgment is reversed with directions that it 'be set aside and that appellant be granted a new trial to be conducted in conformity with this opinion.