98 S.W.2d 938 | Ky. Ct. App. | 1936
Reversing.
Mrs. Collins recovered a $450 judgment against Sarah Tate and her husband, Fallsberg Tate, for damages done to her Ford V-8 Tudor coach, on October 12, 1934, in a collision with it by an international truck belonging to the Tates. The Tates have filed here a copy of the record and have prayed an appeal.
Mrs. Collins in her Ford was on the south side of this road and was going east from Hazard towards Whitesburg. The truck was on the north side of the highway and was going west towards Hazard. The witnesses do not agree about the speed of these machines, but a fair average of their estimates is that the Ford was going about fifteen miles per hour and the truck about thirty. There is neither allegation nor proof of any defects in the brakes or other appliances of either machine. The drivers of both machines were exercising due care and would have met and passed each other in perfect safety but for the accident we shall now narrate.
He saved the little girl, she escaped without injury, but the rear end of the truck so swung and skidded to the south that it smashed into and seriously damaged the Ford, but none of the seven occupants of the Ford were injured.
There certainly was no negligence in this. No one can be held to answer for a happening that results from his doing what the law makes it his duty to do. Courts have directed verdicts for defendants in absence of other negligence in cases where accidents resulted from efforts to avoid striking dogs that suddenly appeared in the pathway of machines. Burhans v. Burhans,
Mrs. Collins was asked about the speed of this truck, and she testified: "Looked like it was making about all it could make." That does not mean anything. The driver of the truck testified he stopped it in about 40 or 50 feet after striking the Ford and drove it over to the right hand side of the road and parked it. The witnesses for plaintiff in the average of their testimony fix the distance from the collision to where the truck was parked at between 60 and 75 feet. That affords no evidence of excessive speed, so we must hold there was no negligent speed shown. *325
Molly Armstrong testified to the same effect, but on cross-examination she admitted she had not seen either the child or truck before the accident.
This same contention was made in Consolidated Coach Corporation v. Hopkins' Adm'r,
Since no negligence was shown, it was reversible error to overrule the motion of the Tates for a directed verdict for them.
In reaching this conclusion we have not gone into the question of contributory negligence upon the part of Mrs. Collins, but have assumed she was entirely blameless, yet she cannot recover of the Tates. True it is that the Collins machine was seriously damaged in the collision, but before Mrs. Collins can recover of the Tates she must not only show that they damaged her car but did so wrongfully. The evidence on this trial showed that as to the Tates, this was an unavoidable accident for which they are not responsible. 1 C.J.S. p. 1011, Unavoidable Accident; 1 C. J. p. 970, sec. 63. See Am.Jur., Actions, sec. 32; 1 Rawle C. L., Actions, sec. 5.
All other questions are reserved. The motion for an appeal is sustained, appeal is granted, and judgment is reversed.
The whole court sitting.