67 S.W.2d 979 | Ky. Ct. App. | 1934
Affirming.
These four cases were tried together in the lower court and have been prosecuted on appeal in this court on the same record. The four appellants while riding as guests in the automobile of the appellee, driven by him, were injured when it ran into the bank by the side of the road and turned turtle. Each brought his suit for damages. Three of the appellants alleged negligence in general terms. The other alleged that the accident was caused by the negligently fast driving of the appellee. The answer in each case was a traverse accompanied by a plea of contributory negligence, in turn denied by each of the appellants. On the trial, the jury *625 found for the appellee, and from the judgments entered on those verdicts, these appeals are prosecuted.
The accident happened on the concrete road between Warsaw and Covington at the crest of a hill where the road, after making a long ascent from a valley, passes through a cut curving slightly as it does. The accident happened in the late afternoon. It had rained earlier that day, and the shoulders of this concrete road, being of dirt, had become very muddy. It was the theory of the appellants that the appellee driving at an excessive and dangerous rate of speed had come up the hill and because of his speed had been unable to negotiate the curve by reason of which his right wheels, front and rear, ran off the road into the mud, thereby deflecting the course of the car, and that when it was pulled back onto the road it skidded across the concrete into the bank on the far side and turned over. On the other hand, the appellee gave this version of the accident: There was plenty of mud on the road at the point where the accident happened; that as he approached that spot (to quote from his evidence):
"It seemed like the steering gear whirled out of my hands. * * * As near as I can estimate in making the curve I think I was about three feet from the curve when I was driving along this way, and then the handle, the wheel, spun, whether something broke in the car or not I will never be able to tell. * * * I think either something went wrong in the car or there was mud on the road from other people. * * * I guess trying to work that steering wheel, and I couldn't work it. * * * I know I was holding on that steering wheel with all my power and the car was skidding with me."
Another witness of the appellee testified that the accident was caused by appellee's car running into some mud on the concrete road that had washed down from the sides of the cut through which the road ran, the automobile skidding when it hit this mud. There was evidence pro and con as to whether or not the appellants, knowing the speed at which appellee was driving his car before and at the time of the accident, had taken any steps to abate the same, thus to free themselves from the charge of contributory negligence. The court in the instructions submitted the theories of contributory negligence on the part of the appellants and *626 negligence on the part of the appellee. It also gave instruction No. 4, which reads as follows:
"If the jury believe from all the evidence that the accident resulted from some defect in the automobile then and there driven by the defendant, which defect, if any, was unknown to the defendant, then the law is for the defendant, and the jury should so find."
It is conceded that under the case of Beard v. Klusmeier,
"The evidence under an issue formed by a mere denial of one or more of the allegations of the petition must be confined exclusively to the question whether the facts alleged in the petition and specifically denied in the answer did or did not exist before the bringing of the suit.
"Such an issue, however, puts in question the existence of the fact in its full legal import or meaning. As, if the plaintiff should allege that the defendant assaulted and beat him, it would no doubt be competent, under a denial of the assault and battery, for the defendant to show that the act complained of was done in friendship, or was a matter of unavoidable accident; for the intention of the party in doing the act complained of is essential in determining whether or not it was an assault, and. the quo animo must be left to the jury. If the material fact alleged is denied, any evidence is admissible *627 which tends to prove that an essential fact or ingredient is wanting to constitute the material fact denied. So in an action for the recovery of specific personal property, if the defendant deny the allegation of title in the plaintiff, he may rely upon limitation by adverse possession for five years in himself or another, or upon a gift or sale from the plaintiff, or any other fact which shows that the plaintiff had not the title at the commencement of the action."
And so in Hollingsworth v. Warnock,
Finding no merit in the contentions of these appellants, the judgments in each of these four cases are affirmed.