Akers v. Fulkerson

• Decision Date: 28 March 1913
• Citation: 154 S.W. 1101,153 Ky. 228
• Parties: AKERS v. FULKERSON.
• Court: Kentucky Court of Appeals

154 S.W. 1101

153 Ky. 228

AKERS v. FULKERSON.

Court of Appeals of Kentucky.

March 28, 1913

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by E. L. Fulkerson against Mrs. Frank Guthrie Akers. From a judgment for plaintiff, defendant appeals. Affirmed.

O'Neal & O'Neal, of Louisville, for appellant.

J. L Richardson and H. O. Williams, both of Louisville, for appellee.

CLAY C.

Harley Fulkerson, a boy 14 years of age, was struck and injured by an automobile belonging to Mrs. Frank Guthrie Akers. His father, E. L. Fulkerson, brought this action against Mrs. Akers to recover damages for the loss of his son's services, and for expenses incurred for medicines and medical treatment. The jury returned a verdict in his favor for $300. Judgment was entered accordingly, and Mrs Akers appeals.

The accident occurred on Third street, near Green, in the city of Louisville on December 17, 1909. Harley Fulkerson and two companions about the same age were playing "tag" or "catcher." Harley had just run from the east side of Third street to the west side. At that time an express wagon and Mrs. Akers' automobile were proceeding south on Third street. Harley started to cross the street again. In doing so he ran a few feet in front of the two horses that were hitched to the express wagon. He was going so fast that he could not stop, and just as he got by the horses he was struck by the automobile. The front part of the automobile knocked him down, and the rear wheels passed over his leg and broke it. After striking him the automobile ran 125 or 130 feet. The chauffeur in charge of the automobile did not blow his horn or give any other signal of approach. The automobile was running at the rate of 20 or 25 miles an hour. One witness, who was at the corner of Third and Green, says that when the automobile passed him its rate of speed was about 25 miles an hour, and when it reached the place of the accident it had slowed down to about 20 miles an hour.

Defendant's witnesses say that the express wagon was proceeding south on Third street on the west side, and the automobile was following the express wagon. When it reached the place of the accident, the chauffeur turned to the east side of the street for the purpose of passing the wagon. At that time the automobile was going at the rate of from 4 to 8 miles an hour. The chauffeur blew his horn as he came up behind the wagon, and also blew it just before Harley was struck. When Harley started across the street, he passed immediately under the horses' heads, and had not the driver of the express wagon pulled his horses they would have come in contact with him.

While it is true that the weight of the evidence is with the defendant, we are unable to say either that there was no evidence to take the case to the jury, or that the verdict is flagrantly against the evidence. Nor can we say, as a matter of law, that the injured boy was guilty of contributory negligence. There was sufficient evidence to justify the conclusion on the part of the jury that he would not have been injured had it not been for the excessive speed of the automobile and the failure of the chauffeur to give reasonable signals of its approach.

After Harley Fulkerson was injured, two actions were filed against the defendant, one by the boy, by his father and next friend to recover for his physical and mental suffering and the permanent impairment of his power to earn money, and this action by the father, D. L. Fulkerson, to recover for the loss of his son's services, etc. In the former case there was a judgment for the defendant, which was affirmed on appeal. Fulkerson, by, etc., v. Akers, 145 Ky. 187, 140 S.W. 167. Defendant in this action pleaded that judgment as a bar to plaintiff's right to recover. To sustain this contention we are referred to the case of Chesapeake & Ohio Ry. Co. v. Davis, 119 Ky. 641, 60 S.W. 14, 22 Ky. Law Rep. 1156. An examination of that case will show that an infant's mother, who was a widow, instituted an action as his next friend, in which she obtained a verdict for personal injuries alleged to have been caused by the negligence of the railroad. The verdict was for $10,000. It was urged on appeal that the mother was entitled to the boy's services until he became of age, and she alone having the right to recover for any loss of his capacity to earn money up to that time the trial court should have limited the right of recovery to the impairment of the boy's ability to earn money...