58 S.W.2d 378 | Ky. Ct. App. | 1933
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *168 Affirming.
This appeal presents for review a verdict of the jury for $10,500 in favor of the plaintiff for a personal injury he sustained in the collision of a bus, in which he was riding as a passenger, with an automobile traveling on the highway from the opposite direction. U.B. McGraw, against whom the judgment was rendered, by his trustee in bankruptcy, prosecutes the appeal.
On the 9th day of April, 1927, Ayers, a traveling salesman, boarded a bus owned and operated by U.B. McGraw from Nortonville, Ky., to Hopkinsville, Ky. A short distance from the village of Crofton, Ky., the bus and the car, driven by Mrs. Marquess, collided, and, in the language of McGraw, it was "just as square as you can hit." The weight of the bus without passengers was 6,300 pounds; with passengers, about 10,000 pounds. At the time of the accident it was occupied by 15 or 18 passengers. The car in which Mrs. Marquess was traveling was a Chevrolet. It was occupied *169 by her and her daughter. At the point of the accident the road from shoulder to shoulder was 24 feet wide. The bus passed a wagon 300 or 400 yards before it reached the point where the accident happened. Three other wagons were on the highway, traveling on the same side of the highway, and going in the same direction of the first wagon. The wagon of Arthur Jones was in front, Jim Bennett next, 100 yards behind, Walter Thompson in his rear, and Arnold Thompson was driving the hindmost, or fourth, wagon, on the extreme right of the highway. On the wagon of Arnold Thompson was "a 16 foot all purpose frame"; those on the other wagons were 10 feet wide Mrs. Marquess pulled up behind the wagon Arnold Thompson was driving, like she was going to stop, then pulled around. The collision occurred opposite the wagon of Arnold Thompson. McGraw described the accident thus:
"When I passed Crofton Lake, I passed the wagon just about the lake; then about 400 or 500 yards from there I passed another one; when I got up * * * about 100 yards this side of that cabin, I met two more wagons, I reckon they were about 50 or more feet apart; I was passing one, and as I got nearly opposite the first wagon, or the middle of these two last ones, this car ran from behind that wagon; I stuck my foot on the brakes to stop."
He was asked and answered in this language:
"Q. About how far were you from the car, when she came from behind the wagon? A. I judge about 50 or 60 feet maybe, I didn't notice particularly.
"Q. When the collision occurred how fast was your bus traveling? A. I was standing still.
"Q. How fast had you been going? A. Twenty or twenty-five miles.
"Q. You were fifty or sixty feet from her when she came around the wagon, how far did you travel after you saw her, before you stopped? A. It looked like about the length of the bus, the way the wheels skidded.
"Q. How long is the bus? A. Twenty feet." *170
Mr. Bryant, a passenger on the bus, was asked and answered these questions:
"Q. When you all climbed out of the bus on the right side, how close did you have to step to the ditch? A. We stepped on the bank of the ditch. The wagons had big frames on them, they were occupying at least one-half the road.
"Q. About how fast was the bus travelling at the time you saw the car coming from behind the wagon? A. 15 or 20 miles.
"Q. What was done toward stopping the car? A. I stopped it, I slapped my foot on McGraw's.
"Q. Did he put his foot on the brake? A. Yes sir, and I put my foot on his.
"Q. What effect did that have? A. It stopped the bus, about 1,000 pounds weight was on it."
This witness claims that at that time he weighed 320 pounds, and thus explains his statement of the weight on the brake at the time he stopped the bus. A majority of the witnesses claim that immediately before and at the time of the collision the bus was on the right side of the road, as close to the edge as possible. The testimony of the witnesses in behalf of McGraw exonerated him of all negligence in the operation of the bus except that portion of the testimony of W.S. Bryant, wherein he claims that he stopped the bus. The road where the accident happened was level for a considerable distance before reaching the point of the accident. Witnesses for Ayers claim that the bus was on the left side or beyond the center of the road. Avers claims that, on the appearance of the automobile of Mrs. Marquess, McGraw made no effort to stop his machine; that he got up and asked him to stop it, taking hold of the back side of the door and remarked to McGraw, "For God's sake apply the brakes," and that at that time Bryant applied the brakes. He says McGraw seemed confused, and, instead of trying to stop, he got a little more speed, when Bryant helped him, and that the bus was on the left side, or beyond the center of the road. Bryant was making an effort to stop it, and, as the bus struck the automobile, "it seemed to knock it sideways," that he was thrown immediately from the bus, "striking the ground as the crash occurred," and dragged, *171 holding to "possibly the door," but was finally forced to turn it loose; that at the time the bus stopped it was "crosswise" the road. Mrs. Marquess explains her part in the transaction in these words:
"There were three wagons on the road. One was some distance ahead of the other two, and as they were away over on the right hand side of the road, I was going by the wagons and when I got even with the first one I saw the bus approaching, there was nothing for me to do but to put on my brakes, and I did."
She says that the bus made no attempt to stop, and was traveling near the middle of the road, and that she was over near the wagons, as close as she could get to them without rubbing them. The wagons were over on the right side of the road as far as they could get; that McGraw was nearer her right-hand side than he was his right-hand side, when the machines struck. She claims that she had roadway in which to pass between the wagon and the bus except for the bus being turned into the middle of the road. The impact knocked her completely off the road to the left. Witnesses for Ayers who were traveling on the highway in an automobile immediately near the point where the accident occurred claim that when they arrived at the scene of the accident, the bus was in such position on the highway that a vehicle could not pass it on either side until it was removed, and it was removed to permit the passage of their own and other vehicles.
Without an elaborate detail of the evidence, the foregoing resume is sufficient to show a direct, positive conflict of the testimony in behalf of the parties, requiring the submission of the issues to the jury. Duff v. May,
On the cross-examination of a witness in behalf of McGraw, he was asked and answered:
*172"Q. How fast was that bus going at the time it turned over? A. About 15 miles.
"Q. Did it go over 15? A. No sir.
"Q. That is as fast as McGraw drives? A. Yes sir."
McGraw's trustee objected to the last question. His objection was overruled. He saved an exception. The same witness was asked this question:
"Q. Did you see his bus come through there every day? A. Every day it was not torn up and had had a wreck."
The objection to this question and answer was sustained. A witness for McGraw was asked:
"Did you ever see him drive that slowly before?" The answer was objected to. The objection was sustained and the question was not answered. This question was propounded on cross-examination of a witness:
"Q. Did this man get out of the car before the collision or was he knocked out at the time of the collision?"
It was objected to, the objection sustained, and the question was not answered. It is argued by McGraw's trustee that the propounding of these questions to the witnesses, when considered in connection with the argument of the attorney for Ayers, was very prejudicial, although his objections thereto were sustained.
The argument of counsel of which complaint is made is in this language:
"McGraw did not say his bus was in good shape and his brakes were good, and his brakes must have been bad or they would have stopped the bus sooner. To the making of said statement the defendant at the time objected and moved the court to admonish the jury not to consider the same, for the reason that there was no evidence or pleading to justify the remark. Which motion the court overruled. To which ruling of the court defendant at the time objected and excepted and still objects and excepts. And again during the argument to the jury said Trimble used the following language: 'You konw how fast a bus driven by McGraw goes, and these boys on the wagon knew it, and when they saw him coming this time they got over in the *173 ditch to keep from being hit by him.' To which argument defendant objected and the court admonished the jury not to consider said remark. Defendant then moved the court to set aside the swearing of the jury, because the statement was prejudicial to the defendant, which motion was overruled by the court. To which ruling defendant at the time objected and excepted and still objects and excepts."
It should not be disputed that the first quotation of the reputed argument was proper. The testimony of Bryant that he stopped the bus by the placing of his foot on that of McGraw, thus using 1,000 pounds pressure on the brake, authorized the deduction of counsel manifested by this clause of his argument. The objection to the second clause of the argument was sustained by the court, followed by an admonition to the jury not to consider the remarks. The trustee of McGraw cites and quotes from many opinions of this court to sustain the insistence that he is entitled to reversal because of the argument of Ayer's counsel. The pronouncement in the cases cited is not disputed. Their applicability is denied by Ayers. The arguments which were condemned in the opinions in those cases are not analogous to that in the present one. We are not convinced that the propounding of the objectionable questions to the witnesses of McGraw, when considered in connection with the argument of counsel of Ayers, as McGraw's trustee insists they should be considered, were calculated to influence the jury in its verdict, or are such as to justify a conclusion that an injustice was done the cause of McGraw, sufficient to warrant a reversal.
An argument to a jury is not reversible error, except where counsel so widely departs from the adopted rules of practice as to indicate a design and purpose to deceive, and to create a miscarriage of justice and to obtain a benefit for his client, which the facts do not warrant by pursuing an undue course approaching corruption. Hines, Director General, v. May,
A hypothetical question was propounded by Ayers to Dr. Anderson. It is claimed that it embraced facts which were not in evidence, and therefore it was incompetent, and the objection thereto should have been sustained. In his brief, the trustee claims that the question is based upon the statement that Ayers took hold of the door of the bus, at the time of the impact, and was holding to it with his left hand when he was thrown from the bus; his left foot striking the hard surface of the road; that immediately after the accident he was exceedingly nervous; and that his toe and foot were bruised, the toe severely stubbed. It is argued that these facts are not similar to those proven. It is also argued that the hypothetical question omitted the fact he was in a former accident.
It is the established rule that a hypothetical question propounded to an expert must be based upon, and related to, the facts proved in the case. Kentucky Traction Terminal Co. v. Humphrey,
It is argued that the verdict of the jury is excessive, the result of passion and prejudice. Without detailing the evidence showing mental pain and suffering, finally resulting in amputation, there is no indication that the verdict of the jury awarded him an excessive amount, other than the sum fixed by it.
In East Tennessee Telephone Co. v. Jeffries,
"We have affirmed verdicts in the following cases as not being excessive: L. N. R. R. Co. v. Moore,83 Ky. 675 , where a brakeman recovered a verdict for $9,000 for the loss of a leg; South Cov. Street Ry. Co. v. Weber, 82 S.W. 986, 26 Ky. Law Rep. 922, a verdict for $10,000 for the loss of a child's hand; L. N. R. R. Co. v. Smith,135 Ky. 462 ,122 S.W. 806 , a verdict of $12,500, where a man 44 years old lost one hand, and was otherwise crushed; Price Lucas v. Haley,137 Ky. 305 ,125 S.W. 720 , a verdict of $9,000 in favor of a man 57 years old for the loss of an arm; and C. O. Ry. Co. v. Davis, 58 S.W. 698, 22 Ky. Law Rep. 748, where a boy nine years old recovered $10,000 for the loss of a foot."
In Norfolk Western Railway Co. v. Thompson, *178
Criticism of instruction No. 1 is presented on the ground that it does not define the duty of either the driver of the bus or of the automobile. Instruction No. 2 is objected to, with the insistence that it does not limit the degree of care which the owner of the bus should have exercised in the control and management of his bus, and operate it in the manner set out in the petition. Instruction No. 3 defines the duty of McGraw. It is insisted that the petition sets out specific negligence, and instruction No. 2 is pitched on general negligence. Instruction No. 5 defines the measure of damage, including such sum as will reasonably and fairly compensate him (Ayers) for any medical, surgical, or hospital bills. The objection to No. 5 is predicated on the insistence that no physician testified with any degree of certainty that the loss of his leg could be traced to the wreck. McGraw offered instructions A, B, C, D, E, F, G, H. Instruction A is substantially instruction No. 3, in so far as it defines the duty of McGraw, except A only required McGraw to exercise ordinary care, when it was his duty to exercise the highest degree of care for the safety of his passengers as indicated in instruction No. 3. If instruction No. 3 contains the vice of which McGraw now complains, the same is found in an instruction offered by him. Having offered it, he may not now complain that the court gave one practically in the language of that offered by him. Moise v. Burton,
The instructions in every case should submit only such issues of fact as to which there is a contrariety of evidence. The instructions which were given amply and fully presented the issues about which there was a contrariety of evidence, and the refusal to give instruction C was not prejudicial to the substantial rights of McGraw. Illinois Central Railway Co. v. Skinner's Adm'x,
Wherefore the judgment is affirmed.