172 Ky. 576 | Ky. Ct. App. | 1916
Opinion of the Court by
Affirming.
In this action for damages for personal injuries against the Postal Telegraph Cable Company, plaintiff, Velma Young’, suing by her next friend, Anderson Young, recovered a verdict and judgment for $500.00. The defendant appeals.
The accident occurred on the Pleasant Hill turnpike, in Pendleton county, just after dark on the evening of November 26th, 1914. Plaintiff and her escort were in a buggy en route to an entertainment. In front of them and about 75 feet distant was another buggy going in the same direction. The horse which plaintiff’s escort was driving.became frightened at apiece of paper on the side of the road and began to run. The backing strap broke and the driver lost control of the horse. In its fright the horse attempted to pass the vehicle in front. In doing so the buggy came in contact with one of defendant’s telegraph poles. Plaintiff was thrown from the buggy and injured. The roadway at the place of the accident is about 29 feet from fence to fence. The traveled part of the road is 14 feet wide, and the metal on the side where the pole was located is 5 feet and 7 inches from the fence. The pole was located 4% feet from the fence and 1 foot and 2-10 inches from the shoulder of the pike. The distance from the edge of the metal and from the buggy wheel tracks thereon to the post was from 12 to 16 inches. It also appears that the pole in question was out of line with defendant’s other poles and was nearer to the traveled portion of the road.
It is first insisted that defendant was entitled to a peremptory instruction, on the ground that the proximate cause of the accident was the fright of the horse and the breaking of the harness, and not the improper
Here the pole in question was out of line with the other poles of the company and was 4y2 feet from the fence. It was on the shoulder of the road about a foot distant from the metal, or that portion of the road used by vehicles. Under these circumstances, it was for the
In instruction No. 1 the court told the jury in substance that if they believed from the evidence that the pole was on or so close to the traveled way of the pike as to make it dangerous or unsafe for the traveling public, and that by reason thereof said horse ran said buggy into or against said pole and plaintiff was thrown to the ground and received the injuries of which she complained, they should find for the plaintiff, but unless they so believed, they should find for defendant. This instruction is assailed on the ground that it authorized a finding in favor of plaintiff without requiring the jury to believe that the improper placing of the pole was the proximate cause of the accident. It was not necessary for the instruction to provide in terms that the jury should believe that the improper placing of the pole was the proximate cause of the accident. All that was necessary was to require the jury to believe in the truth of certain facts, from which it would necessarily follow that the negligent location of the pole was, in fact, the proximate cause of plaintiff’s injuries. This the court did by requiring the jury, before finding a verdict for plaintiff, to believe from the evidence that, the pole was on or so close to the traveled highway as to make it dangerous or unsafe for the traveling public and by reason thereof the collision took place and plaintiff was injured.
The defendant offered the following instruction:
“If the jury believe from the evidence that the pole of defendant named in the evidence was so located that it left ample room that persons driving in a prudent and ordinary manner could use said highway without danger to the one so using said highway, then they should find for defendant.”
It is insisted that the court should have given this instruction, or one similar in effect, in order to present defendant’s theory of the case. Before the jury could find for plaintiff under instruction No. 1, they were required to believe that the pole “was on or so close to the traveled way of the pike as to make it dangerous or unsafe for the traveling public.” Unless they so believed, they were told to find for the defendant. Since the offered instruction was in substance nothing more than .the converse of the given instruction put in an af
Judgment affirmed.