200 S.W.2d 141 | Ky. Ct. App. | 1947
Reversing.
William Drury's widow and administratrix, Margaret Drury, appellee, having recovered judgment against G. Cooksey Elliott, appellant, for damages arising principally from Drury's death by automobile collision, Elliott now appeals.
As grounds for reversal, appellant brings the following contentions of prejudicial, trial error and lays them on the doorstep of the lower court, viz: (A) that it refused to direct a verdict in appellant's behalf and (B) that it improperly instructed the jury.
A. In support of her theory that Elliott was guilty of legal negligence on this occasion and must therefore respond to her in damages for her husband's death and for the demolishment of his car, Mrs. Drury testified on this trial substantially after this manner, viz., that *95 the accident happened on February 23, 1945, around 4 P. M., on Highway 62 at a place where it is obliquely joined by a graveled, county road known as the Ballard Road; that this road junction is almost at the top of a curved hill; that the Ballard Road turns southwardly off of Highway 62, which runs westwardly from Lawrenceburg; that Drury, accompanied by his wife and two small children in the front seat and by Truman Cornish and his wife and child in the rear seat, were traveling westwardly on Highway 62 approaching the top of this hill and the Ballard Road junction; that Drury was driving on his right side of the road and that he, in order to manifest his intention to turn to his left and out the Ballard Road, blew his horn and held out his left hand about 100 feet before reaching this junction; that he made the turn toward his left in oblique manner, beginning at a point about 60 feet eastward of the junction; that observation of the highway ahead disclosed that no car was approaching, at Drury's turning moment, closer than one, later discovered to be under the operation of a man named Holt, coming at a distance of about 250 feet; that Drury was, at the time of his leftward turn toward the Ballard Road, closer to this junction than this Holt car; that the Elliott car, which ran around the Holt car at some point before the junction was reached by these two cars, was not seen until it passed around the Holt car and until the Drury car was "almost across the road;" that the speed of the Elliott car appeared to be around 50 or 60 miles per hour as it came in sight over the hill and from behind the Holt car; that the Drury car had been running along at the rate of 30 or 35 miles per hour on this tragic trip; that the collision occurred in this junction of roads and while the frontward part of the Drury car was on the gravel of the Ballard Road and while its rearward part was on the macadam of Highway 62.
It is evident that this car collision occurred, similarly to that of others of like pattern, because the two drivers aimed toward an occupancy of the same space at the same time. This cannot be tolerated. Nature has enjoined it. Physical law denounces it. Neither administrative veto nor legislative repeal interferes with the vitality of the unchanging canons of the Cosmic Congress of the universe, the canons which fundamentally *96 govern any situation of this kind. One of these two cars should not have been at this fatal spot at the lethal moment of this collision. And the processes of this litigation have now been called upon to determine which should have been and which should not have been at the "X spot" of this calamity in the flashing instant of its ruination.
We feel certain that appellant was not entitled to a directed verdict on this trial, that no error was committed by the trial court in refusing to direct such a verdict. The direction of a verdict for a defending party is not authorized unless, after admitting the testimony offered by the claiming party and after admitting every reasonable inference to be deduced from the facts proven to be true, the cause of action is then and thereupon unsupported by legal evidence. Nelson v. Black Diamond Mining Co.,
B. But appellant has directed our attention to what be believes to be prejudicial errors in the lower court's instructions given to the jury upon this trial. We have reached the conclusion that this contention of committed, prejudicial errors is correct. The trial court instructed the jury substantially within the terms of KRS
We believe that the trial court's instruction, referred to above and outlined above in its general substance missed the vital feature of this case as to the proximate cause of this accident. The proximate cause was clearly not in the failure of appellant to sound his horn in passing the Holt car. Neither was it in the discretion exercised by appellant in passing around the Holt car. Everyone agreed that appellant was already around the Holt car in a normal manner before the collision happened. This collision did not occur as a result of any head-on encounter with an oncoming car at the time of the overtaking incident, but rather it occurred as a result of appellant's sideward smash into a car *98 which had previously turned into appellant's own regained traffic lane at this road junction. Therefore, as we see this situation from all the evidence produced, the crucial factors of causation lay in which car was out of proper control, lay in which car was operating at an improper speed, lay in which car was not keeping a proper lookout, lay in which car had the right of way in the junction area under all the existing conditions. We can readily see how this jury may have been misled, misled into following the chipmunk trail of an omitted horn blowing, whereas it should have been following the elephant trail of the real causative factors, the causative factors as we have indicated them above.
It seems to us that the main negligence questions in a road junction case of this kind would be properly set out and submitted in the following general framework of instructions on this subject.
If the jury believes from said evidence that Elliott failed to observe any one or more of the duties above set *99 forth and that as a direct and proximate result of such failure, the collision of these automobiles occurred and thereby caused Drury's death and his automobile damage, the law is for the plaintiff and you should find for her according to the measure provided in an instruction subsequent hereto; but, unless you believe as herein indicated or unless you believe that Drury himself was guilty of negligence as defined in Instruction II, then in either such event, you should find for Elliott on plaintiff's claim for damages.
If the jury believes from said evidence that Drury failed to observe any one or more of the duties above set forth and that as a direct and proximate result of such failure, the collision of these automobiles occurred and thereby caused the damages proven by the defendant, then the law is for the defendant and you should find for him on his counter-claim according to the measure provided in an instruction subsequent hereto; but, unless you believe as herein indicated or unless you believe that Elliott himself was guilty of negligence as defined in Instruction I, then in either such event, you should find for plaintiff on defendant's counter-claim.
Other necessary instructions incorporating the law as to contributory negligence, as to measure of damage, as to proper definition of terms, as to number of jurors necessary to return a verdict should all be added to those set out above in order to make a complete body of the law applicable to a case of this kind. We have only attempted to furnish the above framework of instructions to the extent necessary to help dispel, as best we can, the fogs of doubt, relative to the respectiveduties of these parties under the general situation and the prevailing conditions as they seem to have existed in this particular case.
And now, because of the instruction, which was given upon this trial and which we believe was erroneous in particulars pointed out herein, the judgment of the lower court is now hereby reversed for further proceedings consistent herewith.