199 Ky. 631 | Ky. Ct. App. | 1923
Affirming.
A large truck owned by appellant, Ingram, was driving on the Danville-Lancaster pike when it r'an into and demolished an automobile owned by appellee, Robinson. Appellant insists that his agent who operated the truck was not negligent but that appellee', Robinson, brought about the collision through his want of care. The jury returned a verdict for $500.00 in favor of Robinson, and Ingram appeals.
Appellant insists that the judgment should be reversed because (1) the verdict is not sustained by the evidence; (2) reference was made by counsel for appellee to indemnity insurance on appellant’s truck; (3) admission of evidence of a proposed compromise, and (4) failure of the court to correctly give -the- whole law of the case.
The verdict is not contrary to either the law or the evidence as we view the record. Not- only appellee, Robinson, but two or three other witnesses testified that the collision between the truck and the car was occasioned by the driver of the truck moving his car too rapidly without due consideration for other persons and vehicles upon the highway. The automobile, according to the weight of the evidence, had drawn to the right of the- road near the fence and had come to a full stop at the time the truck came along in 'the middle of the road' and tried to pass between the automobile and a Wagon loaded with tobacco traveling in the opposite direction, both -of which had pushed as near their respective sides of the road as possible. Part of the evidence tends to show that the truck was driven at a high rate of speed, while there is other evidence tending to show it was going very slowly. This was a question of fact for the jury.. The evidence was sufficient to sustain the verdict.
In the course of the examination of a witness plaintiff’s counsel asked: “Have you an insurance policy on this car?” 'Counsel for the defendant objected and immediately counsel for plaintiff withdrew the question. Counsel for appellant moved the court to discharge the jury and to continue the case. The trial court, after hearing argument of counsel, properly ruled, “Inasmuch as the question was immediately withdrawn in the presence of the jury, and the attorney avowed it was not intended to prejudice the jury,” the motion to discharge
There was no evidence of consequence offered by either side concerning an attempted compromise between the parties before the bringing of the action, and appellant’s ground, based upon the assumption that such evidence was introduced and that the rights of his client were prejudiced thereby, is without foundation in law or fact.
We have examined the instructions given by the court and do not find them subject to the criticism Which counsel for appellant undertakes to make. So far as we are able to judge, instruction No. 1 does not assume that the truck' ran into the automobile at a time when the automobile was not in operation; neither is the instruction incomplete because, as contended by appellant, it fails to present the law of contributory negligence to the jury. After stating to the jury the duty of the driver of the truck in passing the automobile and the wagon loaded with tobacco, and telling the jury that if the truck driver failed to observe the duties required of him and injured the plaintiff’s automobile, to find a verdict for the plaintiff, it continues: “Unless you shall further believe from the evidence that the plaintiff, John C. Eobinson, was himself guilty of negligence in the sense that he failed to exercise that degree of care for his own safety which a person of ordinary care and discretion usually exercises under the same or similar circumstances, and by reason of such failure', if there were -such failure, he contributed to and caused the injury of which he complains and but for which the automobile would not have been struck.” Upon the whole we think the instructions presented the law governing the case.
Finding no error to the prejudice of the substantial rights of appellant the judgment is affirmed.
Judgment affirmed.
