314 Ky. 821 | Ky. Ct. App. | 1951
Reversing.
These appeals are from a single judgment entered in three consolidated actions arising out of a collision between an automobile owned by Mary Martin Zogg and driven by her seventeen-year-old son, Joseph Franklin Zogg, and one owned and being driven by Robert Preston O’Bryan, at the intersection of Frederica and 18th Streets in Owensboro, on November 26, 1948 at about 11:30 o’clock p. m. Zogg was proceeding* north and 0 ’Bryan south on Frederica. Commencing with the north curb line of 18th Street, Frederica narrows in width. At that point and north thereof it is approximately 45 feet; south of that point it is approximately 70 feet in width. Zogg intended to continue his northerly course but was required to veer to the left because of the narrowing of the street. O’Bryan changed his southerly course by turning left or east into 18th Street. Zogg testified he was traveling at approximately 30 miles per hour as he approached the intersection; O’Bryan estimated the speed at not less than 50. The speed at which 0 ’Bryan was traveling does not appear in evidence but he testified that he came to a full stop north and west of the center point of the intersection when he was struck by the Zogg car. Zogg testified that he was proceeding
The first of ■ these actions was instituted against 0 ’Bryan by Joseph Zogg, who sued by his father, Frank Zogg, as his next friend. In that action O’Bryan filed a cross-petition against Mrs. Zogg and a counterclaim against the plaintiff. The court did not, nor was he requested to, appoint a guardian ad litem to defend the plaintiff in the counterclaim. Defense to the counterclaim on behalf of the infant was made by the attorneys who filed the suit. The next suit was instituted by Mrs. O’Bryan against Joseph Zogg and his mother, Mary Martin Zogg, to recover for personál injuries sustained in the accident. In that action Honorable John W. Beard was appointed guardian ad litem for the infant defendant and filed answer for him. The third suit was filed by Mary Martin Zogg against O’Bryan to recover for injuries sustained to her automobile in the collision. On the 13th day of June, 1949, an order was entered directing the three cases to be “consolidated and tried together.” On the 16th day of June, an order was entered in the second suit, appointing Honorable John B.- Anderson guardian ad litem, in addition to the guardian ad litem theretofore appointed, with directions that the guardians ad litem “represent and defend this action for and on behalf of the said infant defendant.” No additional pleading was filed on behalf of the infant before the trial. The cases were tried together, resulting in verdicts for the O’Bryans against the Zoggs and pursuant thereto judgment was entered allowing Robert Preston O’Bryan to recover the sum of $1222.65 of Joseph Zogg and Mary Martin Zogg on the counterclaim and cross-petition in the action first herein referred to and allowing Frances Elizabeth O’Bryan to recover the sum of $4996.65 of Joseph Zogg and Mary Martin Zogg in the second action. These awards and dismissal of the petition in the third action were- entered in a single judgment, from which the Zoggs have appealed.
Appellees contend that none of appellants’ complaints hereinafter set out should be considered, because they were entitled to a peremptory instruction
The first complaint is that the court erred in the instruction which required Zogg to yield the right of way to O’Bryan, if the jury believed from the evidence that O’Bryan first reached and entered “the intersection of 18th Street” with Frederica Street. It is the contention of appellant that the words “beyond the center point” should have been inserted after the word “intersection” in this instruction. Reliance is had on the opinions of this Court in Walton v. Grant, 302 Ky. 194, 194 S. W. 2d 366, and Bridge Transit Co. v. Le Seuer, 304 Ky. 403, 200 S. W. 2d 942. Appellees contend that the instruction is correct and those approved in Walton v. Grant, supra, and Bridge Transit Co. v. Le Seuer, supra, are .erroneous because the O’Bryan car would never lawfully reach the center point of the intersection since by another instruction it was required to change its course short of the center point. It is true, as appellees contend, that following the course required of him by the other instructions, O ’Bryan would not have reached the center point of the intersection of 18th and Frederica Streets in a north-south direction; but, in making the turn from a southerly course to an easterly course, he passed or would have passed the center point of the street in a west to east direction. Thus, from the time O’Bryan commenced the turn into 18th Street, he was traveling a course which inevitably would intersect the course being traveled by Zogg; and, since Zogg was or would have been on O’Bryan’s right when the cars arrived, or should have arrived, at the intersection of their paths, Zogg was required to yield the right of way only if O ’Bryan first reached such point of intersection, KRS 189.330(2). The respective rights and duties of the parties under this section of the Statute however are secondary to Zogg’s right and O’Bryan’s duty under the provisions of KRS 189.380(2) which reads: “(2) Every person operating a vehicle on the highway before turning, stopping or changing the course of the vehicle and before turning the vehicle when starting it shall first see that there is sufficient space for the change or turn to be made in safety, # *
A proper instruction under this section was given
(It was the further duty of O’Bryan)
“To yield the right of way through the intersection to Zogg unless the jury shall believe from the evidence that O’Bryan, after having observed the duties imposed on him by instruction (a) under ‘the further duty of O’Bryan,’ first reached the intersection of the respective paths of the O’Bryan and Zogg automobiles to the east of the center point of the intersection, in which event only, it was the duty of Zogg to yield the right of way through the intersection to O’Bryan.”
Appellants next contend the court erred in refusing to permit evidence of injuries sustained by Joseph Zogg in a fall which occurred on a stairway while he was convalescing from the injuries he received in the accident. He originally sustained injuries to his knee which required an operation in which holes were drilled in the larger fragments of the bones through which a silver wire was inserted for the purpose of pulling and fixing the bones in close proximation. The leg was then placed in a cast for approximately seven weeks. Upon removal of the cast the knee was fitted with a brace to assist the patient in walking. When he fell on the stairs, the wire was torn loose and the operation had to be performed over again. There was no showing that the second fall was in any way attributable to the injury sustained in the automobile accident. Zogg testified merely that he missed the step and fell. His missing the step might
The next complaint is in respect to the court’s refusal to permit appellant Joseph Zogg, in the circumstances we will relate, to read certain questions and answers from the deposition given by him as on cross-examination previous to the trial. On cross-examination in the trial, counsel for O’Bryan confronted Zogg with a statement contained in the deposition which appeared to be in conflict with his direct testimony. It is contended that a reading of five questions and answers contained therein, would clarify and reconcile his direct testimony with the answer he gave to the particular question in the deposition. We are of the opinion the court erred in refusing this evidence under the rule that where a party seeks to impeach a witness by the introduction of a portion of a former deposition, the opposing party may introduce the entire deposition or as much of it as contains matters which will clarify and reconcile the evidence given on the trial and that given in the portion of the former deposition introduced. Blackerby v. Commonwealth, 200 Ky. 832, 255 S. W. 824. O’Donnell’s Adm’r v. Louisville Electric Light Co., 55 S. W. 202, 21 Ky. Law Rep. 1362.
The court refused to permit Mary Martin Zogg to qualify as a witness concerning the values of automobiles. Since no avowal was made, this point may not be raised as a basis for reversal, nevertheless it was competent and should be admitted if offered at the next trial.
The complaint in respect to the exclusion of testimony of Mrs. Zogg concerning the suffering of her son from the injuries he sustained is well taken. Ordinarily, laymen may not give opinion evidence unless they testify to the facts or circumstances upon which they base their
Mr. O’Bryan’s testimony that his wife was unable to perform her household duties after the accident was-so superfluous that, if incompetent, it should not be noticed. She was confined to her bed four months with a broken leg which is conclusive evidence that she was unable to do her household work and her husband’s-testimony to that effect added nothing to the evidence. If there had been some question concerning her ability to do her household work, we would have a different situation and a different question.
On direct examination, Mr. O’Bryan testified to certain facts concerning the happening of the accident which were in sharp, dispute and in conflict with his-recitation concerning the same matters given in a statement signed by him before the trial. Counsel for appellant offered the written statement given by Mr. O’Bryan' in evidence to contradict his testimony at the trial. The-Court sustained an objection to the introduction of the-signed statement. We do not know the basis for this ruling, but it seems to have been that the written statementdiscloses the fact that Mr. O’Bryan has a contract with' an insurance company indemnifying him for certain ex
The final ground for reversal relied on by both .•appellants is that counsel for appellees injected into the record incompetent references to the fact that the Zoggs were indemnified by an insurance company for any amount they might be required to pay under a judgment against them. Robert Milby investigated the accident •and obtained the statement signed by Mr. O’Bryan to which we previously have referred. Appellees intro■duced him as a witness in rebuttal of the testimony of Mr. O’Bryan. He was then asked whom he represented when he took the statement and he testified that he represented the Travelers Insurance Company. He was then asked if the Travelers Insurance Company carried an indemnity policy issued to Mrs. Zogg which, at the -time of the accident, covered the operation of Mrs. Zogg’s .automobile which was involved in the accident. Over •objection of appellants, he was permitted to answer the question in the affirmative, but the court admonished "the jury to accept this evidence only “under the cireum•stances to show his (Millby’s) business relation'and employment or interest in the transaction: anything that •might be calculated to influence the witness in giving testimony and can be considered for no other purpose.”
One of the errors we have discussed was not prejudicial to appellants in the action instituted by Mrs. O’Bryan, but the exclusion of the former statement of ' Mr. O’Bryan, the exclusion of the former testimony of Joseph Zogg, and the closing argument were. These errors alone require reversal of the judgment in all of the consolidated cases.
One question remains which affects only so much of . the judgment as permits appellee to recover of the infant, Joseph Zogg, on the counterclaim in the action first herein referred to. As we have stated, no guardian ad litem was appointed to defend the counterclaim on
The judgment is reversed with directions that it be set aside and that appellants be granted a new trial in