Adams v. Parrish

• Decision Date: 23 November 1920
• Parties: ADAMS v. PARRISH ET AL.
• Court: Kentucky Court of Appeals

225 S.W. 467

189 Ky. 628

ADAMS v. PARRISH ET AL.

Court of Appeals of Kentucky.

November 23, 1920

Appeal from Circuit Court, Fulton County.

Action by Lon Adams against H. B. Parrish and another. From a judgment for defendants, plaintiff appeals. Reversed for new trial.

W. J Webb, of Mayfield, and Ed. Thomas, of Fulton, for appellant.

Robbins & Robbins, of Mayfield, and H. T. Smith, of Fulton, for appellees.

SAMPSON J.

While walking on the streets of Fulton in October, 1918, Lon Adams a lawyer, was struck by a Ford automobile and knocked down and before he could arise was run over by a large car driven by a man by the name of Donahue and so injured that he lost one leg and was otherwise permanently disabled. He brought this case in the Fulton circuit court against the owners of the Ford car as well as the driver and also against Donahue to recover damages for his injury. Donahue was a resident at that time of Tennessee and no process was or could be served on him, so before the trial the case was dismissed as to Donahue without prejudice and prosecuted against the other defendants only. Defendants H. B. Parrish and Charles Holloway compose a partnership firm doing an automobile sales and repairing business in that city, and the other defendant George Church, the driver of the Ford car, was in their employ as a mechanic and trouble man.

On the day of the accident, Church was driving a small Ford car belonging to Parrish and Holloway eastward on Walnut street. Before he came to the intersection of Mulberry street he observed a large car approaching from the east. At this moment the Ford car was near the crossing of the Illinois Central Railroad on Walnut and about 75 feet from the nearest edge of Mulberry street, while the big car driven by Donahue approaching from the east was about 100 feet from the east side of Mulberry street. Appellant, Adams, was walking along the pavement on the south side of Walnut street near the intersection of Mulberry street and proceeded to cross Mulberry street to the pavement on the east side thereof. When he was within about 4 feet of the pavement on the east side of Mulberry street, he heard the rattling of a car behind him, and, quickly glancing backward, he observed the Ford machine within about 4 feet of him, coming in his direction. Adams sprang towards the walk, but before he could reach the pavement the Ford car struck him in the back and knocked him into Mulberry street, where his prostrate body was immediately run over by the big car driven by Donahue which approached from the east along Walnut street and suddenly turned into Mulberry street. The Ford car so struck him that it knocked his body into Mulberry street, and he lay with his head next to the pavement and his feet towards the center of the street. Before he could spring up the other car passed over him, and it was the last car that broke his leg and otherwise inflicted most of the painful injuries. The course of the Ford car is indicated on the accompanying map by a single black line, while that of the big Donahue car is indicated along Walnut street by two small black lines. The direction taken by appellant, Adams, is indicated by a dotted line, and the place of the accident in the street where he was struck is indicated by an "X."

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A trial of the case resulted in a verdict for the defendants, and the injured man appeals, asking a reversal of the judgment for three reasons: (1) The verdict is contrary to and against the law and evidence; (2) the court erred in permitting incompetent and immaterial evidence to be introduced by the defendant and in refusing to allow plaintiff to introduce competent and material evidence in his behalf; (3) the court erred in its instructions to the jury, especially in giving instruction No. 5, on the subject of contributory negligence.

There is little controversy about the facts, for it is admitted that appellant, Adams, was walking along the street at a place he was entitled to be and was exercising reasonable care for his own safety. He testifies that he, as he walked east on Walnut street, saw the big Donahue car coming west on the same street, but he calculated that he would be able to cross the street without coming in contact with this big car, so, glancing to either side, he proceeded to cross the street without knowing that the Ford car was coming up behind him. There was no other vehicle approaching from either side. The Ford car gave no warning signal. In fact, neither of the cars sounded a horn. It may well then be admitted that appellant was guilty of no negligence, contributory or otherwise; and the court committed prejudicial error in instructing the jury as to the law of contributory negligence. Moreover, the instruction given on that subject did not correctly state the law in such cases, for, although a plaintiff may be guilty of negligence, yet, if his negligence does not so contribute to his injury as that but for such negligence on his part he would not have received the injury, it does not bar a recovery; while the instruction given incorrectly told the jury that, if it believed from the evidence that Adams failed to exercise ordinary care for his own safety and by reason thereof contributed to his own injury, it should find for the defendant. This was error. Chesapeake & Ohio Railroad Co. v. Conley, 136 Ky. 601, 124 S.W. 861; Railway Co. v. Nelson, 89 S.W. 200, 28 Ky. Law Rep. 290.

Appellees contend that the...