136 Ky. 708 | Ky. Ct. App. | 1910
Opinion op the Court by
Affirming.
This action was brought by Mrs. Moore against appellant, Webb, to recover damages for personal injuries sustained by her in an automobile accident. On a trial of the case the jury assessed the damages in her favor at $1,250. The errors assigned for reversal are (1) the failure to grant a continuance; (2) refusal to direct a verdict for the appellant; (3) that the verdict was flagrantly against the evidence; and (4) error in giving and refusing instructions.
At the time of the accident Mrs. Moore was driving in an open-top buggy east on Walnut street in the ■city of Fulton. The horse she was driving was ordinarily gentle and had often passed automobiles without becoming frightened. The appellant, Webb, -in his automobile, in company with a friend, was going west on Walnut street. This street at the place of the accident is some 30 feet wide, and Mrs. Moore, when her horse first became frightened was driving on the south side of the street in a slow trot. She testifies that, when she first noticed her horse
Webb testified that he was driving the machine at the rate of 5 or 6 miles an hour, and that when he first discovered the fright of the horse he was about 20 feet from him; that the horse quickly turned to the north side of the street — the side upon which Webb was driving-and when he saw the horse coming in the direction of the machine he at once turned the machine in on the pavement, in order to avoid a collision that seemed to him inevitable if he remained in the street. He further said he was obliged to leave the pavement and return to the street on account of a little house that was built close to the pavement; that when he turned his machine out on the street there was room between the side
Accepting Mrs. Moore’s version of the affair, there can be no doubt that the 'jury had the right to believe that Webb was guilty of negligence in failing to stop his machine when he discovered, or should have discovered by the exercise of ordinary care, the frightened condition of the horse she was driving; and, oven if Webb’s statement of the collision and accident be accepted as true, they yet might well have reached the conclusion that his failure to stop was negligence. Going at the rate of speed that Webb was, he could 'have stopped his machine at least when he ran it up on the sidewalk, and have thus avoided coming in contact with Mrs. Moore. 'But, in place of doing this, he endeavored to pass between the buggy and the sidewalk, as in his opinion he might safely have done without injuring Mrs. Moore, if she had remained in the buggy.
It will thus be seen that in this particular case the question of Webb’s negligence turned upon the' fact whether or not he should have stopped the machine. Evidently the jury reached the conclusion that his failure to stop was negligence, and under the facts stated we cannot say that the jury was not justified in so holding. It is manifest.that in cases like this no fixed standard of care can be laid down as a matter of law, nor can it be said what conduct will amount to negligence; and so the only rule that we can safely apply, when the facts authorwo the sub
We may here add that, although section 2739g of the Kentucky Statutes, regulating the running of motor vehicles on public highways, does not apply to the operation and use of automobiles in incorporated cities and towns, it nevertheless lays down rules that it would be well for operators of motor vehicles to keep in mind. Thus in section 3 it is provided that:
“Upon approaching a person walking in the roadway of a public highway, or a horse or other draft animals, being ridden or driven thereon, a person operating a motor vehicle shall give warning of its approach by signaling with a horn, bell, or other device not calculated to frighten such animal, and use every reasonable precaution to insure the safety of*714 such person or animal, and, in the case of horses or other draft animals, to prevent frightening the same, and at once reduce the speed at which such vehicle is being operated and hold same under control, and if such horse or other draft animals appear frightened, to not more than one-half the speed permitted by section two, and bring the same to a stop if apparently necessary for the safety of such person or animal, having due-regard to safety of passengers Tn such motor vehicles.
“Sec. 4. A person operating a motor vehicle shall, at request or on signal by putting up the hand, from a person riding or driving a restive horse or horses, or other draft animals, bring such motor vehicle immediately to a stop if necessary, having due regard for safety of persons, vehicles and animals, and if traveling in the opposite direction, remain stationary so long as may be reasonable to allow such horse or animal to pass, and if traveling in the same direction, use reasonable caution in thereafter passing such horse or animal. Provided, that in case such horse or animal appears badly frightened or he is requested so to do, the person operating such motor vehicle shall, if apparently safer, cause the motor of such vehicle to cease running so long as shall be reasonably necessary to prevent accident and insure the safety of persons, vehicles and animals.”
Considering the case upon the testimony of either Mrs. Moore or Webb, there was sufficient evidence to take it to the jury and to sustain the verdict.
Nor did the court err in failing to grant a continuance. The witnesses on account of whose absence a continuance was asked were two nurses, who waited upon and attended to Mrs. Moore during a part of
The instructions are not open to criticism. The court told the jury that if they believed from the evidence that Webb negligently and carelessly ran his automobile toward, over, and upon the plaintiff after he had discovered the restive condition of her horse, if any, or the perilous situation of plaintiff, if any, or might have discovered such condition by the exercise of ordinary care, and that by reason of such negligence the plaintiff was injured, they should find for her. They were further told that, unless they so believed, they should find for the defendant, and were also instructed that if the plaintiff failed to exercise ordinaiy care in the management of her
Counsel for Webb requested the court to instruct the jury that automobiles have the same right on the public highways as the owners of other vehicles, exercising ordinary care in the management and control of the same, and that Webb was not liable unless he failed to use such care, and by reason thereof Mrs. Moore was injured. This instruction was in substance given to the jury except that part of it saying that the owners of automobiles had the same right on the public highway as the owners of other vehicles. As an abstract proposition of law, owners of motor vehicles have the same right on the public highway as the owners of other vehicles, but manifestly the failure to so instruct the jury did not at all prejudice Webb’s case. No question whatever was made in the examination of the witnesses or during the trial as to the right of Webb to operate his machine on the street.
Perceiving no error, the judgment must be affirmed.