Garrison v. Dixie Traction Co.

| Ky. Ct. App. | Jun 6, 1950

Judge Knight

Reversing.

These suits arose out of the same accident and were tried together. Appellant Gary Duncan Garrison, four years of age, brought suit through his father and next friend for $5000 damages for personal injuries sustained in the accident. Appellant, C. William Garrison, brought suit for damages for personal injuries, damages to his automobile and for the loss of its use, totaling $5911.32. The negligence complained of in the petition in each case was that appellee’s agent or servant negligently brought the motor bus he was driving to a sudden and abrupt halt without displaying the proper signal of his intention so to do resulting in the collision of the car driven by appellant C. William Garrison with appellee’s bus. Appellee denied the allegations of the petitions and pleaded contributory negligence of appellant C. William Garrison, driver of the car in his own case, and in the son’s case, that his injury was caused by the sole negligence of C. William Garrison, driver of the car in which the son was riding. A reply filed in each suit made up the issues.

The cases were tried before a jury and at the conclusion of all the evidence, the court peremptorily instructed the jury to find for appellee in each case. Appellants prosecute this appeal from a judgment based on that verdict, contending that the court erred in directing a verdict for appellee and in admitting improper evidence.

Appellee operates a municipal transportation system, by motor bus, between northern Kentucky cities in Kenton and Campbell counties and Cincinnati. The accident involved occurred on Sunday morning, November 16, 1947, between 10:30 and 11:00 o’clock when one of its buses was making a regularly scheduled run from Erlanger to Cincinnati on Dixie Highway, a four lane, concrete highway, approximately forty feet wide. At Fort Mitchell, one of the towns served on the route, the bus, traveling north, made a stop at the northwest corner of Highland Cemetery to pick up a waiting passenger. This is a regular stop and has been such for many years, and is called in the record the “power house” stop, although appellant’s testimony indicates that there is no sign there showing it to be a regular bus stop. All the testimony of appellee is that as the bus approached the stop, it slowed down gradually, came to a stop, its passenger boarded the car and presented her fare and was receiving her change when the automobile driven by appellant C. William Garrison crashed into the left rear end* of the bus, causing the damage complained of. There were a good many passengers on the bus at tbe time and sucb as testified said there was no sudden stop of tbe bus before tbe crash. None testified to tbe contrary. According to appellee’s evidence tbe bus was a modern one with tbe usual controls on tbe dash, and all of appellee’s evidence showed that it was in good condition with two red stop lights operated by brake pressure and two red reflectors; that the bus was clean and tbe road was dry at tbe time of tbe accident; that tbe operation of tbe bus was a normal one, including tbe stop for picking up tbe passengers.

The only evidence produced by appellants as to bow tbe . accident occurred was tbe testimony of appellant C. William Garrison who testified that be was driving behind tbe bus at a speed of approximately thirty-five miles per hour, tbe same speed at which tbe bus was shown to have been traveling, and at a distance of approximately fifty feet behind tbe bus; that without any signal or warning of any kind tbe bus came to an abrupt and sudden stop and before be could do anything about it be slammed into the bus; that if any stop lights came on when tbe bus stopped' be did not see them because of tbe coating of mud on tbe bus which be says obscured tbe signals. He was corroborated to some extent, that tbe back of tbe bus was dirty, by tbe testimony of bis witness, Mrs. Wilson, a bus passenger, who testified that she could not see out tbe back window of tbe bus when she attempted to see what bad happenéd when she beard tbe impact. She. also said that when she reached Cincinnati she observed tbe outside of tbe bus and there was mud over tbe back of tbe bus. All of appellee’s evidence is to tbe contrary.

Two well defined issues are thus raised by tbe evidence, and these are whether tbe bus was abruptly baited as it approached tbe intended stop, and that if tbe driver gave tbe stop signal, was it so ■ obscured by dirt that it could not be seen. While tbe weight of tbe evidence was that there was no sudden stoppage of tbe bus as it approached tbe “power bouse” stop and that tbe bus was clean so that its stop lights could be seen, tbe majority of tbe court is of tbe opinion that tbe testimony of appellant C. William Garrison, that the bus did on that occasion make a sudden and abrupt stop, and the testimony of his witness, Mrs. Wilson, and himself, that the stop signals were so obscured by mud that they could not be seen, was sufficient to take the case to the jury. The issues of fact, whether the bus did or did not stop suddenly and whether the stop signal required by KRS 189.050 was so obs.cured by mud as to render it ineffective in this particular case, were for the jury.

The admission of incompetent evidence complained of by appellants related to a photograph of the bus involved in the accident which was taken two days after the accident. The purpose of this photograph, filed as an exhibit, was to show that the bus was clean when the accident occurred and not dirty so as to obscure the stop lights, as appellants contended. While there was some evidence that the bus was in the same condition when the photograph was taken as when the accident occurred, we do not think the evidence along that line was satisfactory, being largely negative testimony. Those testifying said the bus had not been washed or changed to their knowledge. We think the photograph, taken two days after the accident, was improperly admitted as showing its condition as to cleanliness on the day of the accident.

Wherefore the judgment is reversed in both cases for proceedings consistent with this opinion.