273 S.W. 470 | Ky. Ct. App. | 1925
Affirming.
On March 1, 1923, appellee was driving his automobile in an easterly direction along the Blandville road towards Paducah when he was run into by the automobile of appellant, then being driven by appellant's son, Cary Stevens. Appellant does not question but that he is responsible for any negligence of his son on this occasion. The boy at this time was thirteen years of age, and his driving of this car was in direct defiance of section 2739g-34, Kentucky Statutes, which prohibits any person under fourteen years of age driving an automobile on a public: highway at any time or under any conditions. The road at the point where the accident happened crosses a culvert and extends in either direction *707 from the culvert in a straight line for a mile or more. The appellee had crossed the culvert and had gotten his Ford as far to the right hand side of the road as he could — one of his wheels being right next to or in a water furrow, sometimes called in this evidence a ditch, beside the road. Appellant's son was going in a westerly direction. He claims that on account of the lateness in the afternoon the declining sun was shining on the windshield direct in his eyes, for which reason he could not see over ten or fifteen feet ahead unless he looked out the side of his automobile when he could see about thirty or forty feet ahead. Although he was thus blinded, he drove his machine in the middle of the road, the right and left wheels being on either side of the crown, and this in defiance of section 2739g-35 of the Kentucky Statutes, which forbids a person to drive in the middle of the road unless the left side of the road is clear of traffic and presents a clear vision for a distance of at least 150 feet ahead. Appellant's son did not see appellee's car until he was right upon it and then it was too late to avoid the collision. As a result of the collision appellee's car was overturned and he received a very severe fracture to the bones of both legs. On the trial appellee recovered a verdict of $1,000.00, to reverse which this appeal is brought.
Appellant first insists that he was entitled to a peremptory instruction because of appellee's alleged contributory negligence. It seems to be appellant's theory that the evidence showed appellee at the time of the collision was going at an excessive rate of speed. This matter of speed was in dispute, as appellee's testimony indicated that he was going to a reasonable rate of speed. Hence it is manifest that appellant was not entitled to the peremptory instruction requested. We may also say that we do not see how the collision could have been averted had appellee been standing still, for he was over on the right hand side of the road as far as he could get according to all of the testimony in this case, and it is plain that the collision was caused by appellant's son driving down the middle of the road without being able to see where he was going.
Appellant next insists that the court excluded relevant testimony offered by him to the effect that appellee was seen by witnesses just before the accident going up the road at a very high rate of speed. None of these *708 witnesses at the time they saw appellant were nearer than 400 yards to the point of collision and none of them saw appellee after he passed them. The fact that appellee, a quarter of a mile away from the scene of the accident, may have been going at a high rate of speed is no logical or relevant evidence that he was going at that speed at the point of the accident. The same is true concerning the statement which the court excluded, that appellee is alleged to have made on leaving Gage, twenty miles from Paducah, to the effect that he expected to be in Paducah in half an hour.
Appellant also contends that the court erred in refusing to give an instruction offered by him on contributory negligence. This instruction was an abstract one and the appellee was amply protected on this branch of the case by instruction number five which the court did give. Appellant, however, argues that this given instruction is erroneous because the court declined to state therein that it was the duty of appellee at the time and place of the accident to sound his horn. Kentucky Statutes, section 2739g-28, provides that horns shall be sounded " whenever necessary. " This court in the recent case of United Casket Co. v. Reeves,
It is next insisted that appellant was entitled to a new trial on the ground of newly discovered evidence. This newly discovered evidence is to the effect that two of the witnesses introduced by appellee to substantiate his testimony as to how the accident happened did not see the accident because, although they claimed they were only a block and a half away from the point of the accident at the time it happened and immediately drove up, yet, according to these newly discovered witnesses who arrived on the scene of the accident shortly after it happened, appellee's witnesses were not then in sight and did not arrive until about a quarter of an hour later. There are six of these so-called newly discovered witnesses. Four of them testified on the trial and after the witnesses whom it is sought to impeach had testified. Appellant never inquired of his witnesses concerning the testimony offered by appellee's witnesses nor does he show that he exercised any diligence whatever to ascertain from them on the stand or off the stand during the trial any of the facts he now seeks to prove. One of these witnesses was his own son who was present and testifying. Further, the essential facts in this case were not in dispute. Appellee was as far to his side of the road as he could get. Appellant's son, blinded by the sun, was driving down the middle of the road not only in the teeth of the statute, but also against the dictates of ordinary care. The rule is that to authorize a new trial on the ground of newly discovered evidence, the new evidence must be such as to satisfy the court that, if heard by the *710
jury along with the other evidence, a different verdict would have been rendered. Benge's Admr. v. Marcum,
Perceiving no error prejudicial to appellant's substantial rights, the judgment of the lower court is affirmed.