313 Ky. 356 | Ky. Ct. App. | 1950
Reversing.
.. Appellant instituted this action against appellee, Estil Lucas, and the Louisville Railway Company, seeking recovery for injuries she sustained when a bus, owned and operated by the Louisville Railway Company, in which she was a passenger, was struck by an automobile owned and being operated by appellee. The court sustained a motion for a directed verdict in favor of the Louisville Railway Company, about which no complaint is made. The sole complaint is in respect to the court’s failure to direct the jury to return a verdict in favor of appellant against appellee, Estil Lucas.
Both appellant and appellee rely on the latter’s testimony concerning the happening of the accident; and appellant relies additionally on the testimony of Sam Buford, a Claims Agent for the Louisville Railway Company, in respect to the dangerous condition of the streets in Louisville, particularly at the scene of the accident and at the time of its happening. Mr. Buford was called to the scene of the accident to make an investigation on behalf of his employer. He testified that all of the streets, whether “busy” or not, were slick. He stated: “ To keep from not going through any of those intersections, I would have to drive up at Tenth Street and all the other intersections at a speed, — I looked at my speedometer because of the fact that it was slick, — I noticed at about five or six miles an hour was about the best speed that you could go, and go safely.” He was asked the following question and made the following answer: “Q. Groing fifteen or twenty miles an hour, as Mr. Lucas said he was going, what would happen about being able to stop without skidding? A. I would have gone through every intersection.”
Mr. Lucas testified that he was traveling north on Tenth Street for a distance of two city blocks between Broadway and Chestnut where the accident occurred, that he knew the street was “a solid sheet of ice and.
Appellant contends that since the facts are undisputed, the question becomes one of law for the court to determine. Hogge v. Anchor Motor Freight, 277 Ky. 460, 126 S. W. 2d 877; McGraw’s Adm’r (Lee) v. McGraw’s Adm’r (Davidson), 293 Ky. 722, 169 S. W. 2d 840; Wathen v. Mackey, 300 Ky. 115, 187 S. W. 2d 1000. We think the rule is stated clearly in the Hogge case, supra, wherein the court said: “Negligence and contributory negligence are to be determined by the jury, except where the uncontradicted testimony is such that but one conclusion can be drawn therefrom by fair-minded men, in which case it becomes a matter of law for the court. (Citations.)” (277 Ky. 460, 126 S. W. 2d 879.)
In an unbroken line of cases, one of which is Atlantic Greyhound Corporation v. Franklin, 301 Ky. 867, 192 S. W. 2d 753, we have, held that the mere fact
We fail to perceive how appellee could have been unaware of the fact that his speed was such as to render him helpless in the circumstances. Scarcely 500 feet before he applied his brakes in respect to the requirement that he stop before entering Chestnut Street, appellee turned from Broadway into Tenth Street and stated that the streets were so slippery that no one could negotiate that turn at more than one-half of one mile per hour. Despite this fact, he admitted that for 200 feet on Tenth Street he drove at a speed of 25 miles per hour and then slowed to approximately 20 miles per
The judgment ist reversed for proceedings consistent with this opinion.