186 Ky. 142 | Ky. Ct. App. | 1919
Opinion of the Court by
Reversing.
About the same time, a motor truck, used by the Standard Oil Company in clistribxxting oil, approached from in the direction of Crestwood axid proceeded along the pike towax*d LaGrange, axxd when it crossed the Floydsburg pike, was moving at a speed of, from eight to twelve xniles per hour, bxxt, as it proceeded, the speed of the truck was reduced very much, and it was moving very slowly along and upon the side of the pike opposite to the side upon which the approaching children were walkixxg, when the boy, Collett, who was engaged in a romp witlx another small boy, pushed the other to the ground, and then fled fx~om him, as though lie' expected the other lad to pursue him, and ixx so doing, he came immediately toward the moving truck, but, with his face turned backward, axxd looking in the direction opposite from the direction from which the truck was moving, and as a result, he collided with the front end of the truck. The collision was so forceful, that the boy was rendered unconscious, and fell upon the pike, in front of the machine, with his head in the direction, the machixie was moving, but, the machine was proceeding so slowly, and so well under control, that, one of its front wheels ran between the boy’s legs, but, was stopped before the wheel reached his body. Just about the time, the above circumstances were transpiring, an automobile- was approaching the
At the close of all the evidence, offered by either party, the court sustained a motion for a directed verdict in appellee’s favor, and of such ruling of the court, the appellant complains.
It is elementary, that where a fact is necessary to give one a cause of action, and the existence of such- fact depends upon contradictory evidence, whether such fact; exists, or does not exist, is a question for the Jury, and that it is only where the uncontradicted evidence presents a state of facts, which shows, that a party has no cause of complaint, or no defense to the complaint, made against him, that the court is authorized to take the case from the jury. Hence, it is only, where, after admitting the testimony of a plaintiff, and every fair inference from it, to be true, and he still has failed to make out his case, that the court should take his case from the jury, by directing a verdict against him. Dallam v. Handley, 2 A. K. M. 418; Thompson v. Thompson, 17 B. M. 23; Baumeister
It is also, insisted, that the witnessles, who proved, that the operator of the truck gave warning signals with the horn, as it approached appellant, were positive in their statements to that effect, and that the evidence, which was offered to prove the contrary, was negative, and consisted of declarations to the effect, that the witnesses did not hear the signals, and for such reason, the court was justified in holding, that the proof of the giving of the signals, was uneontradicted. Such, however, has never been the rule, as adhered to by this court. In C. & O. Ry. Co. v. Hawkins, 124 S. W. 838, it was held, that, whether positive testimony, that signals for a crossing were given, outweighs negative testimony of witnesses, that they were not given, the witnesses deposing, that they did not hear them, was a question for the jury, as after all, the truth of the matter depends upon the credibility of the witnesses and their means of knowledge. The same conclusion was reached in L. & N. R. R. Co. v. Brown, 113 S. W. 466; L. & N. R. R. Co. v. O’Nan, 119 S. W. 1192; and C. & O. Ry. Co. v. Brashear, 124 S. W. 273 There is no reason, why the same rule should not prevail, in regard to proving or disproving the giving of signals, by those operating a motor vehicle The appellant deposed, that no signal or warning was given from the truck, and that he did not see it, nor know of its presence, and in the latter statement, he is corroborated by all the evidence, as it must be inferred, that, if he had known of its presence, he would have avoided a collision with it. It can not be surmised, that, if the warning signal had been given, that the appellant would not have heard it, and, having heard it failed to avail himself of the knowledge of the presence of the truck and kept out of its way. Hence, we conclude, that the court was in error, in holding, that upon the uncontradicted evidence, there was a
The uncontradicted evidence, does not prove, that appellant so contributed to his. injury, by his own negligence, that, without which, the injury would not have occurred. Of course, if he had seen the truck approaching upon the highway, the failure to give a warning, would not have been the proximate cause of his injury, or if he was guilty of such negligence, in failing to know of its approach and keep out of its way, but, for which he would not have come in contact with it, his action must necessarily fail. It appears, that an approaching automobile was giving out a warning, in his rear, and he deposed, that such was the cause of his looking backward and failing to see the approach of the truck; a railroad train was passing or had just passed and going in the direction of La-Grange; and while the nncontradicted evidence shows, that he was engaged in a romp with another boy, and at the time, he was struck by the truck, he was running away from the boy and looking backward, as he went, having heard no signal of the approach of the truck, and no reason to apprehend, that any obstacle was in front of him, it could not be said as a matter of law, that he was failing to exercise that degree of care to be expected of one of his. age under similar circumstances. A child is not held to that degree of care and prudence, which persons, who have arrived at years of discretion, must be required to exercise, but, is held to. only that degree of care for his own safety, as is ordinarily exercised by children of his age, under similar circumstances. Davis’ Admr. v. Ohio Valley Banking & Trust Co., 127 Ky. 800; Ky. Hotel Co. v. Camp, 97 Ky. 425; Owensboro v. York, 117 Ky. 294; P. & M. R. R. Co. v. Hoehle, 75 Ky. 41; Ky. Central R. R. Co. v. Gastineau, 83 Ky. 119; Macon v. M. & P. R. R. Co., 110 Ky. 680. The judgment is. therefore reversed and cause remanded with directions to award a new trial, and for other proper proceedings not inconsistent with this opinion.