314 Ky. 192 | Ky. Ct. App. | 1950
Affirming.
This is an appeal from a judgment dismissing the plaintiff’s petition in an action for damages for personal injuries after the jury had returned a verdict for the defendant.
Appellant, Catherine Durbin, was struck by an automobile driven by appellee as she was crossing Eighteenth Street in Louisville. The accident happened at the intersection of Standard Avenue and Eighteenth Street. It is appellant’s contention that she was entitled to a directed verdict in her favor, leaving to the jury only the assessment of damages, since there was no evidence that the accident was unavoidable or that she was guilty of contributory negligence.
Standard Avenue ends at Eighteenth Street. Appellant left her home on La Salle Street and walked north along the east side of Eighteenth Street until she reached the crosswalk on the north side of its intersection with Standard Avenue. According to appellant, the
It is argued that there are inconsistencies between appellee’s statements to police officers soon after the accident, his statements in a deposition taken before the trial, and his testimony on the trial. The inconsistencies pointed out by appellant are slight, but in any
If appellee’s testimony is true, appellant was guilty of contributory negligence, and it was proper for the court to instruct on that question. Smith v. Goodwin, 292 Ky. 37, 165 S. W. 2d 976; Wilder v. Cadle, 227 Ky. 486, 13 S. W. 2d 497. In Remmer’s Ex’r v. Mayhugh, 303 Ky. 366, 197 S. W. 2d 450, 453, a pedestrian, while crossing a highway, was struck and killed by an automobile. In an action against the driver of the automobile by the deceased’s personal representative, the jury returned a verdict for the defendant. It was argued on appeal that the trial court should have peremptorily instructed the jury to find for the plaintiff, and should not have instructed on contributory negligence. It was held that the question as to whether the defendant was negligent and, likewise, the question as to whether the plaintiff’s decedent was guilty of contributory negligence were matters for the determination of the jury. The court said: “The prevailing rule is to the effect that the trial court is not justified in taking the case from the jury unless facts are not in dispute, or the proof is such that fair-minded persons might not differ about them.” In the present case, the"facts as to the negligence of the- defendant and the contributory negligence of the plaintiff were in sharp dispute, and it was for the jury to say whose version of the accident should be accepted.
It is argued that Instruction No. 2-D was unauthorized and erroneous in that it was not only misleading but completely neutralized Instruction No. 2-0. The court told the jury in Instruction No. 2-C that it was the duty of the driver of the automobile in turning into Eighteenth Street to pass immediately to the left of the center point of the intersection and as close as possible thereto. This is in accordance with the provisions of KBS 189.330(1). Instruction No. 2-D told the jury that it was the duty of the driver of the automobile to turn into Eighteenth Street on the east side of the center line of that street, to move his car at a reasonable
Judgment is affirmed.