196 Ky. 579 | Ky. Ct. App. | 1922
Affirming
judgments in each. case. Appellee in the above two actions, Ellen Ray, filed the first one in the Hardin circuit court against appellant, Andrew E. Ray, alleging that he wrongfully and negligently operated his automobile on the public highway in Hardin county by wilfully and carelessly running it against a mule hitched to a buggy in which plaintiff, her husband and two small children, were riding and causing the mule to become frightened and to run off with the buggy, whereby plaintiff was thrown out of it and sustained severe, permanent and painful injuries to her right arm and shoulder,- producing great mental pain and anguish and permanently impairing her ability to work or perform her household duties. She sought a judgment for general damages for $20,000.00, and for special damages incurred for surgical and medical attention in the sum of $110.00, or a total sum of $20,110.00. The answer denied the negligence charged as well as the damages claimed, although it was not denied that plaintiff sustained injuries, and pleaded contributory negligence on the part of plaintiff which was denied by a reply, and upon trial the jury under instructions from the court returned a verdict in her favor against defendant for the sum of $2,500.00, upon which judgment was rendered, and, the court declining to set it aside on a motion for a new trial, defendant lias appealed upon the grounds as expressly stated in brief that, “First, the court erred in failing and refusing to give to the jury a correct instruction on contributory negligence; second, the court erred in refusing to admit evidence as to a statement'made by the husband of appellee in her presence, and third, the court' erred in rendering a judgment on the verdict of the jury because the verdict was too indefinite and uncertain to authorize it and the court had no authority to reassemble the jury after it had been discharged and some, of the members had left the court room,'” and those are the only grounds argued for a reversal.
The second case in the caption was an action filed after the adjournment of the court in which the judgment was rendered, by the defendant therein to obtain a new trial on the ground of newly discovered evidence material to his defense, and which he did not and could not, by the exercise of ordinary diligence,' discover before the trial of the original case. The grounds for that
To the first complaint against the judgment, of the failure of the court to instruct the jury on contributory negligence of plaintiff, at least three answers may be made, which are: (a), that there is no evidence of any contributory negligence to sustain it, on the part of either plaintiff or her husband; (b), that if there had been proof of negligence on the part of the husband, who was driving the mule, it could not, under the state of the record, be imputed to his wife, the plaintiff, and (c), no such instruction was asked by defendant at the trial. Only the parties to the suit testified as to Avhat occurred at the time of the accident. Plaintiff testified that the bug’gy in which she was riding met defendant in his automobile just as she and her husband were driving into the road from a temporary detour around a mudhole and that plaintiff ran his automobile against the forelegs of the mule without stopping and caused it to become frightened and run away and that before doing so he said to her husband, “Get out of my way; I will run over you,” whereupon her husband said to him, “For God’s sake, Cebe, don’t do that. Don’t crowd me like that.” After plaintiff was hurt and was taken home in the automobile of defendant, her two sons, one of whom was thirteen and the other fifteen years of age, testified that plaintiff stated to them that “lie ran Into father and mother with the machine and scarred the mule and she ran down through the woods.” They also testified that after the mule, which broke loose from the buggy and was running at large on the commons, was found on the next day it had a large knot on its left fore leg near the knee, which eventually disappeared leaving the spot devoid of hair. Defendant testified that as he approached the buggy containing plaintiff and her husband, they were driving around the mudhole in the road, and, quoting from his testimony, “I drove up on the main road and when I came to this mudhole I started to go around. I stopped so that they could come out into the main road. They tried to stop but the mule wouldn’t stop. lie reared up and ran down through the
In the cases of Winston’s Admr. v. City of Henderson, 179 Ky. 220, and Barnes and Brother v. Easton’s Admr., 190 Ky. 392, it was held that the negligence of the driver of an automobile or other vehicle would be imputed to an invitee or licensee riding therein if the latter had knowledge of the facts constituting the contributory negligence for a sufficient time prior to the accident to enable him to take the requisite precautionary steps to avert it, and if he should fail to take such steps within such time and was afterwards injured through the alleged negligence of another, the latter, in a suit against him by the invitee or licensee, could rely on contributory negligence of the driver. No such rule applies, however, when the contributory negligence of the driver arises suddenly and without an opportunity of the invitee or licensee to exercise the proper care to avoid its consequences or to provide for his safety. And so, in the cases of Louisville Ry. Co. v. McCarthy, 129 Ky. 814, and City of Louisville, v. Zoeller, 155 Ky. 192, it was held that, under facts not distinguishable from those in this case, the negligence of the husband as driver of the vehicle in which his wife was riding could not be imputed to the latter in an action by her against the producer of her injuries, and therefore answer (b) is also effectual against the contention.
The rule of practice to the effect that in civil cases it is not the duty of the court to give to the jury the whole law of the case, and that a litigant may not complain of the judgment, either on a motion for a new trial or on
The second ground relied on for a reversal is bottomed on testimony offered to be proven by the witness, J. E. Slaughter, who was asked, “State whether or not Bruno Eay (plaintiff’s husband), in the presence and hearing^ of his wife made any statement to you about this accident.” The court sustained an objection to the question and an avowal was made, “That if permitted to answer the witness would say that he did. ’ ’ Witness was then asked, “What was stated?” to which an objection was sustained and it was avowed, “That if permitted to answer the witness would say that on this occasion Bruno Eay in the presence of his wife told him (witness) that on the occasion of the accident Cebe Eay stopped his machine, killed the engine, the mule stopped, Cebe Eay got out of his machine and started to help him by with the mule. ’ ’ The insistence is made that the statement attributed to the husband was in the nature of an admission by plaintiff, who, it is claimed, was present, that the accident happened, not as plaintiff testified it did, but in a manner exculpating defendant of any negligence. The rule contended for and sought to-be applied here is rested upon the theory that if a damaging statement is made in the presence of a litigant and he heard it, or the circumstances were such that he must necessarily have heard it, and he neither said nor
The third ground relied on for a reversal is bottomed upon certain facts which appeared at the trial with reference to returning of the verdict by the jury and its acceptance by the court and his subsequent action con
The newly discovered evidence relied on for a new trial in the second action brought for that purpose was the testimony of Thomas Goldsmith and his grand
Wherefore, the judgments in each case' are affirmed.