313 Ky. 837 | Ky. Ct. App. | 1950
Affirming
The appeal is from a judgment for $10,000 for the death of Mize Milton Stapleton, a 6 year old boy, caused by an automobile. The fatal accident occurred September 3, 1918, on the highway between Harlan and Pennington Gap, Virginia, at the hamlet of Cranks Creek. There are a store, in which the post office is kept, and eight or ten dwelling houses in the group. Just before the accident, a school bus had unloaded 25 or 30 children there and several cars were parked in front of the store. Three Stapleton children ages 6, 9 and 10, had been given a ride to the store, where they were going to buy candy, in their uncle’s truck. They and four Middleton children were in the body of the truck, which had slat sides covered with a tarpaulin as a canopy. The truck, headed east, stopped on the south side of the highway (the right side) with the right wheels off the pavement, leaving about 15 feet clearance between the truck and the other side of the paving. Martin Stapleton, the 9 year old boy, got out and ran across the road. Mize swung down from the back end. He was struck by a Plymouth automobile traveling west and was killed almost instantly, apparently from severe fractures of the skull.
The evidence introduced by the plaintiff is that the automobile was going 50 or 60 miles an hour and no
The driver of the automobile, Hinkle, did not testify and his absence is unaccounted for. The evidence of the defendant, especially that of three or four high school girls looking out of the window of the store, is that the child ran across the highway into the path of the oncoming car and collided with the fender. These witnesses, like some of us older persons, were not very good in estimating distances certainly and the speed of an automobile probably. They say the car was traveling only 15 or 20 miles an hour, and ran only about 25 feet after it struck the boy.
The ease was submitted under an instruction per
In testing the sufficiency of the evidence, we, of course, take that most favorable to the plaintiff, with all reasonable inferences. That evidence is that the automobile came into a congested area where children had but recently alighted from a school bus. The estimates of three witnesses that it was being driven at 50 or 60 miles an hour, the terrific impact upon the child, the undenied skidding after the brakes were applied, all indicate an illegally excessive speed. KRS 189.390, 1948 edition. It could well be inferred or believed that the driver saw the first child run across the road and had he been keeping proper lookout and running at a reasonable and prudent speed under the conditions, he could have avoided striking the second child. The same is true with respect to the failure to sound the horn. It may not be said that on approaching such a congested area, where a group of children might well have been anticipated and where there were cars parked on both sides of the road, failure to sound a horn is not negligence as a matter of law. KRS 189.080; Best’s Adm’r v. Adams, 234 Ky. 702, 28 S.W.2d 484. The cases cited by the appellant are not in point. They are where the driver of the car could not have seen the person struck nor have had time to give such alarm. We regard the evidence sufficient to take the case to the jury. Brown McClain Transfer Co. v. Major’s Adm’r, 251 Ky. 741, 65 S.W.2d 992; McCray v. Earls, 267 Ky. 89, 101 S.W.2d 192; Kelly v. Marshall’s Adm’r, 274 Ky. 666, 120 S.W.2d 142; Vansant v. Holbrook’s Adm’r, 285 Ky. 88, 146 S.W.2d 337; Kentucky Virginia Stages v. Tackett’s Adm’r, 294 Ky. 189, 171 S.W.2d 4; Bright v. McAllister, 310 Ky. 512, 221 S.W.2d 67.
But the appellant insists that the testimony tending to establish ownership of the car and relationship of the driver was incompetent. The automobile had been driven to Harlan by another than Hinkle with the body of the child in it. The identity of the car is conceded. The point as to incompetency is that the police officer did not see the car until it was at his headquarters in Harlan and that there is no evidence that it contained these products and advertising matter at the
The record of the application for a license filed with the Registrar of Motor Vehicles of Ohio and the issuance of the license with the tags on the car was on April 30, 1948, four months before the accident. Appellants say that the car might have changed hands several times during the intervening period. It is suggested that it may not have been this particular Hinkle who had been selling the defendant’s products in the community three or four days before, or that he might have left the company’s employment in the meanwhile. There is not such difference in time or events that would negative the presumption of continuity of ownership and relationship as to make the evidence irrelevant and incompetent, as the appellant argues. It was sufficient to raise a rebuttable presumption and there was no rebuttal evidence of any sort.
Another claim of incompetent evidence is the testimony of the child’s father. He described the skid or tire marks on the highway and the blood spots as being 54 feet from the truck and at the time it had been moved. Eye witnesses had pointed out all these things to the father and testified that they were in the same condition except perhaps the truck when the father arrived on the scene. There was no error, in admitting the testimony. Bybee Brothers v. Imes, 288 Ky. 1, 155 S.W.2d 492.
The criticisms of the instructions are not well taken. In the main, they relate to insufficiency of the evidence. The principal instruction follows that prepared by this court and published as Sec. 102, Stanley’s Instructions to Juries. Under the present circumstances, thp instruction should have included the lookout duty. The omission, however, was to the defendant’s advantage.
The court, as we have stated, gave an instruction
The instruction F was incomplete but it should have been omitted altogether. It might have proved prejudicial to the plaintiff, but certainly was not to the defendant. A six year old child is not chargeable with contributory negligence. Tupman’s Adm’r v. Schmidt, 200 Ky. 88, 254 S.W. 199. The court gave an instruction under the sudden appearance rule based upon the evidence of the defendant that the child suddenly darted out from behind the truck from which he had alighted or ran into the side of the automobile or came so close in front of it that the driver could not by exercising ordinary care and the use of the means at his command either have stopped the car or changed its course or given the child warning by the usual signal in time to have avoided the collision. The instruction is patterned after that prepared by this court in Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448; Sec. 108, Stanley’s Instructions to Juries. As there stated, it is a proper instruction under certain circumstances as more fully and fairly presenting the defense of freedom from negligence where the person injured or killed could not, under the law, be charged with contributory negligence.
But the appellant argues that the verdict cannot be sustained as it is contrary to the law, that is, con
In overruling the defendant’s motion for a peremptory instruction, the court stated to the attorneys that the case should be submitted to the jury because the evidence was conflicting as to the speed of the automobile and that there was evidence the boy was killed on the left side of the road, thereby showing the car was on the wrong side. The defendant then moved to discharge the jury, which motion was overruled. As stated in the bill of exceptions, these remarks were made in an ordinary voice and the jury was not in the box and heard nothing that was said. The appellant argues that this alleged misconduct in making the statement is error. It points out that the stenographer’s transcript of the colloquy does not contain the phrase which appears in the formal bill of exceptions, “the jury was not in the box and heard nothing that was said. ’ ’ The court had power and right to add this as a matter of fact not shown in the stenographer’s report. There was no attempt to show it was untrue. The point of error is without merit.
The judgment is affirmed.