190 Ky. 392 | Ky. Ct. App. | 1920
Opinion op the Court by
Affirming.
May Eastin, fifteen years old, lost her life in an automobile collision while she was riding as a guest of the driver, and her father, as administrator, brought this suit to recover damages for her death. This appeal is prosecuted by Barnes Bros., of Beaver Dam, to reverse a judgment for $4,000.00 entered upon a verdict for that amount in favor of the administrator.
She was a visitor in the vicinity of Beaver Dam in August, 1918, and' met Dorris Martin and wife who invited her to take a ride with them in an automobile which Martin was driving. She accepted and the three, seated on the front seat of the car, started in the direction of Hartford, only a few miles away. The weather was hot and dry, and it was late in the afternoon. From the evidence it appears that Martin was driving rather fast and when he came near the place of the accident some of the witnesses say he was going thirty to forty miles per hour. The road runs over a. small-rise or hill and just as the car in which May Eastin was riding was approaching the summit of this rise, a car driven by a young man named Wilson came suddenly down the hill, passing the Martin car and casting up a great cloud of dust, so that the occupants of the Martin car could not see the road or even one another, whereupon Martin immediately put on both the service and emergency brakes in an effort to stop the car. While this was being done the car ran over the crest of the hill and was on the downward slope some 150 or 200 feet from the point at which the Wilson car passed Martin. The Martin car was on the right hand side of the road. Just after the car had passed the top .of the hill and was starting down the slope on the other side, a truck owned by appellants, Barnes Bros., and driven by their chauffeur, Oldham, ran into and against the front end of the Martin car with such force that the impact threw Martin, wife and Miss Eastin forward against the glass windshield, cutting the juglar vein and windpipe
• The public road along which, they were traveling was about 26 feet wide; about 9 feet of the right hand side of the road as one travels from Beaver Dam to Hartford is macadamized while the balance of the road, about 17 feet, is dirt. Martin in the operation of the automobile was obeying the law of the road by keeping to the right, and at the time of the collision his car was on the macadam road, where it had a right to be. It appears that the Barnes truck was attempting to pass the Wilson car just in front of it, and in order to do so, turned towards the left side of the road on to the macadam in violation of the rules of the road. The dust was so dense that the driver, Oldham, could not see the road or approaching car. All the witnesses testify that the dust obscured everything and neither of the drivers was aware of the approach of the other car. No warning signals were given ■ by either car.
The petition makes the following averments of negligence: “On the 16th day of August, 1918, while the said decedent, May Eastin, was traveling on the Hartford and Beaver Dam public highway, in Ohio county, Kentucky, in an automobile, and while exercising ordinary care for her own safety, the said E. P. Barnes & Bro., by its agent and servant in charge and control of one of its said automobile trucks or cars, carelessly and negligently drove said automobile truck or car into and against the car in which the said decedent was riding and said decedent was thereby by impact of said collision thrown against the wind shield of said car in which she was riding thereby severing her windpipe and juglar vein, which resulted in her death in a few minutes; that said agent and chauffeur in charge of said defendant’s car or truck and operating said car or truck was incompetent, unqualified and unlicensed, which facts were all known to the defendants; that said chauffeur or agent of said defendants was operating said car in violation of law on the public highway. . . . The collision heretofore referred to occurred at a curve and on a hill on said public highway and that the said chauffeur operating said defendant’s car or truck could not observe the road 300 feet in front of him and that at the time said defendant, by its agent or servant in charge of and operating said car or truck, was driving same in a grossly negligent and careless manner and at an excessive high rate of speed and
The negligence relied on in brief of counsel for appellees is stated as follows:
First: Negligence of. appellants’ chauffeur in driving the car at the time and place complained of at an unreasonable and unnecessary rate of speed.
Second: Negligence of appellants’ chauffeur in running the ear on the left hand side 'of the highway, in the direction in which he was going, up a hill, on a curve, in a cloud of dust, when he could not see objects in front of him without giving any warning of his approach.-
Third: Negligence of the chauffeur of appellants’ car in failing to give any signal of his approach to the summit of the hill.
Fourth: Negligence of the chauffeur of appellants’ car in failing to turn to the right of the center of the road in attempting to pass the car driven by Dorris Martin, in which appellee’s decedent was riding.
The answer traverses the allegations of negligence contained in the petition and affirmatively pleads contributory negligence.
In their brief counsel for appellants assert the following fourteen reasons why the judgment should be reversed:
1. It was an unavoidable accident on the part of Oldham, the driver of appellants’ car, and of negligence of Martin, the driver of car in which decedent was riding.
2. Oldham, appellants’ driver, was not negligent at the time.
3. It was error to reject the testimony of Oldham as to speed of the Martin car at the time of accident, based on the shock of the impact.
4. It was error to refuse to admit statement by Martin made immediately after accident, that the speed of his car was the cause of the accident.
5. It was competent to prove that decedent’s mother and her sister reproved Martin in decedent’s presence
6. It was competent to show, by witnesses, the general reputation of Martin as a reckless and careless driver.
7. Under any theory of the case it was competent to show that Oldham was not acting for appellant company in making the trip but was acting for Byron Barnes alone.
8. The court should have sustained appellants’ motion for a directed verdict.
9. Under the law appellee’s decedent was required to exercise ordinary care for her own safety under the circumstances surrounding her and was guilty of contributory negligence preventing a recovery.
10. Instructions numbers 1, 2 and 3 are erroneous statements of the law as applied to the facts and were misleading to the jury.
11. Oldham had the right to run his car on any side of the road except when passing' another car.
12. The petition set out the specific acts of negligence complained of, five in number, as follows:
a. Oldham was incompetent a¡nd unqualified.
b. He was operating the car unlawfully, as he had no license.
c. He was operating at more than twenty miles an hour.
d. He failed to sound an alarm at a point where he could not see 300 feet in front, and that the accident occurred at a curve on a hill.
e. That he was operating it at an excessive speed.
13. There being no evidence that Oldham was incompetent or that he was exceeding twenty miles an hour or going at an excessive speed, it was error to instruct on these points.
14. The instructions submitted false issues not made in the pleadings or proof and thus the jury were led into the field of speculation as to the facts.
Almost any one of the fourteen foregoing reasons would be sufficient to reverse the judgment if it existed in this case. They may be reduced to a much less number, because numbers 1, 2, 7 and 8 may be considered under one head, and 3, 4, 5 and 6 under another, and all the others under the subjects of “contributory negligence” and “instructions to the jury.”
Was the collision an unavoidable accident, An unavoidable accident is one from which there is no escape.
A driver of a motor truck on a public highway who voluntarily turns his vehicle from the right hand side of the road to the left where vehicles going in the opposite direction are expected to travel, at a time when he can not see the road for dust, without-giving a reasonable warning signal, is grossly negligent.
Oldham as well as Mr. and Mrs. Martin testify that the dust was so dense one could not see the road or any object immediately before him at the time of the accident. They are the only living witnesses. However, counsel for appellants insist that the witness Oldham should have been allowed to answer how fast the Martin car was traveling at the time of the accident based upon the impact. This would have been an impractical and vague thing to attempt, for we apprehend such a mathematical problem would be well nigh if not entirely beyond the grasp of the human mind. Moreover there was no qualification of the witness, for he did not show any special learning or knowledge of the subject. So far as the record discloses this was the only collision of motor cars which Oldham ever witnessed. He was not therefore qualified to give an opinion as an expert on how fast the Martin car was traveling at the time it encountered the truck driven by Oldham.
So far as the record shows Martin was guilty of no negligence at the instant of the accident, whatever may have been his want of care at other times. It was therefore unimportant as to what he said shortly after it happened about what caused the accident, and his statement, however strong it may have been, exonerating Oldham or self accusatory, would not have prejudiced the rights of the adminstrator .of the decedent because the negligence of the driver was not imputable to her. She had no control over the driver or car and therefore his negligence was not a bar to her estate’s recovery for the wrong in-
The case of Hackworth v. Ashby, 165 Ky. 799, was very similar to the instant case. The defendants’ car was on the wrong’ side of the road when it ran into the car in which the plaintiff was a passenger guest, and We said:
“The issue in this case was whether the defendants, through the driver of their car, were negligent, and whether such negligence, if any, caused or contributed to the plaintiff’s injuries. These things being found to be true, negligence on the part of Carrithers in driving the car in which plaintiff was riding, would not excuse the negligence of defendants, for even if Carrithers was negligent, and his negligence concurred with negligence upon the part of the defendants in causing plaintiff’s injuries, she may recover from the defendants therefor. Paducah Traction Company v. Sine, 111 S. W. 356, 33 R. 792. Nor is the degree to which defendants’ negligence contributed in causing the injury necessary to be determined. North Jellico Coal Company v. Trosper, 165 Ky. 417, 29 Cyc. 487.”
. The administrator was entitled to recover of Barnes Bros, although they were not guilty of all the negligence which brought about her injury and death, if guilty of concurring negligence which contributed to her injury and death; and even though Martin was guilty of negligence at the time of the collision other than fast or reckless driving her cause of action against Barnes Bros, would not be taken away even if it be admitted she was aware of the proneness of Martin to speed his car, or knew that he' was a reckless driver, for this knowledge could have taken away no cause of action in her favor which, did not directly arise out of fast or reckless driving, and this was not true of this injury. The rule recognized and approved in the Winston case (179 Ky. 220) has no application to the facts of this case, for Miss Eastin did not in any degree contribute to her own injury.
While a passenger riding in a motor ear can not shut his eyes to surrounding perils and rely on the driver for safe conduct, it has never been held that a passenger’s cause of action for the negligence of a third party which caused a collision and injury to the passenger, is defeated by a showing that the driver of the passenger car was careless or unskillful, unless his carelessness or unskillfulnes.s contributed directly to the injury. This was not shown in this case, but on the contrary the driver of the
Unless the carelessness and recklessness of Martin contributed to the injury of Miss Eastin it was not important that he had a reputation for reckless or careless driving.
Of course Barnes Bros, would not be liable for the negligence of Oldham, the driver of the truck, if he were not then in their service performing a duty in the regular line of his employment. He was the chauffeur and delivery boy for the firm, and regularly had charge of their truck. He was under the direction of the general manager of the store and took orders from him. The general manager in the exercise of his authority over him told the •chauffeur to go to Hartford and bring some ice, and' while on this trip the accident happened. The chauffeur was working on the firm’s time and not his own or that of the general manager’s as an individual. The truck was in charge of its chauffeur and under the direction of the general manager of the firm. This case does not fall within the class where the chauffeur steals the ear out for an object of his own or while out for his master abandons the master’s service to perform one wholly his own. In such cases the master is not liable. Eakin’s Admr. v. Anderson, 169 Ky. 1; Crady v. Greer, 183 Ky. 675; Miller v. National Automobile Sales Co. (1913), 177 Ill. App.; Curren v. Lorch (1914), 243 Pa. 247.
The general manager of the firm directed the chauffeur to take the car of the firm and perform a special duty which he was attempting at the time of the accident. The truck was therefore in its regular line of employment as was the chauffeur Oldham, and his acts were the acts of the firm, and it was liable.
Decedent was guilty of no negligence, so far as the record shows, which contributed to bring about her injury-
A peremptory instruction in favor of appellants would have been error.
The instructions given by the trial court to the jury very carefully define the duties of the driver of the truck, and told the jury to find for the administrator, if it believed from the evidence that the truck driver was guilty of a violation of any of said duties.
The court correctly instructed the jury that it was the duty of the driver to have the truck under reasonable control, to give notice of its presence by the customary sig
There was no contributory negligence on the part of Miss Eastin while she was riding as a guest of the Mar
There can be no doubt of the correctness of the rule which requires drivers of motor vehicles, while on the public highway, to exercise ordinary care to prevent injury to others, and this care' can be exercised only by having the driver’s vehicle under control, by giving reasonable warning of its approach to other vehicles and to persons and by exercising caution commensurate with
Finding no error to the prejudice of appellants, the judgment is affirmed.
Judgment affirmed.