Bays v. Cox' Adm'r
| Decision Date | 07 March 1950 |
| Citation | 229 S.W.2d 737,312 Ky. 827 |
| Parties | BAYS et al. v. COX' ADM'R. |
| Court | United States State Supreme Court — District of Kentucky |
Woodward, Hobson & Fulton, Louisville, O. R. Bright, Flemingsburg, B. S. Grannis, Flemingsburg, C. Guthrie Yager, Ashland, for appellants.
Lloyd A. MacDonald, Flemingsburg, M. J. Hennessey, Maysville, for appellee.
Appellee, R. H. Hayes, personal representative of Nola Cox, at a trial was awarded a verdict of $4,000 against appellant Henry R. Cox, and $8,000 against appellant Kenneth Bays, because of the death of Nola Cox caused by a collision of automobiles driven by appellants on State Highway No. 158 in Fleming County, Kentucky, on November 27, 1947.
Appellants appeal from a judgment entered on that verdict, assigning as errors: (1) The court erred in overruling motion for a directed verdict; (2) the court erred in giving Instructions Nos. 6 and 8, and each of them, and in refusing to give the instructions offered by appellants; (3) the court erred in disregarding and giving no effect to Paragraph 2 of appellants' answers, the truth of which was shown by uncontradicted testimony, and in entering judgment for the amount of $4,000 against appellant Cox, and $8,000 against appellant Bays; and (5) the judgment is not supported by the pleadings and the evidence.
On November 27, 1947, about 5 p. m., appellant Henry L. Cox, accompanied by his wife, Nola Cox, appellee's decedent, and Earl Caskey, was driving his automobile in a westerly direction on State Highway No. 158, toward Hillsboro. Appellant Bays, accompanied by W. E. Crutcher, was traveling in an easterly direction, toward Sharkey, on the same highway. In a collision between these automobiles, appellee's decedent, Nola Cox, was killed and several others were injured. The highway at the place of the accident was traffic bound gravel, about 25 feet wide. At the time there were well-worn car tracks on this road.
For Cox it is stated that he was on his right side of the road; that he had passed a curve to the right, and after straightening out his car on the straight-of-way, looked at his speedometer, saw that he was going 40 miles an hour, and as he looked up saw the car driven by Bays about 50 yards away, coming at him on the wrong side of the road, traveling about 60 miles an hour.
For Bays it was shown that he was traveling about 35 miles an hour on his right side of the road, in the car tracks; that he first saw the Cox car when it was about 150 feet from him, traveling in the car tracks on the wrong side of the road; that he attempted to cut his car to the right. The cars are described as having come together head-on, in a collision causing the death of Nola Cox and serious injuries to the other passengers in the cars.
On this conflicting evidence the trial court properly submitted the case to the jury.
In appellee's petition it is shown that the decedent, Nola Cox, was a married woman, 42 years of age, with two children at the time of her injury and death. Appellants, each in the second paragraphs of their answers, plead that Henry Cox, at the time of the injury and death of appellee's decedent, Nola Cox, was her husband. It was shown by the testimony of appellant Henry R. Cox and others that he was, at the time of the accident and injury and death of Nola Cox, her husband, and that Nola Cox also left surviving her two children. This evidence was uncontradicted.
Appellant Bays offered an instruction as follows: 'If you find for the plaintiff against both defendants, you will determine such sum as will fairly and reasonably compensate her estate for the destruction of her power to earn money; and will then award one-half of such sum in damages against the defendant, Kenneth Bays, and one-fourth of such sum in damages against the defendant, Henry R. Cox.' The court refused to give this instruction or any similar instruction. He gave instructions Nos. 6 and 8 as follows:
Counsel for Cox says he feels sure that exceptions were saved to the court's refusal to give the instructions offered, and to the instructions as given by the court, but the record does not disclose any such exceptions, so that we cannot consider the correctness of the instructions. Notwithstanding the state of the record, appellants contend that the pleadings and the testimony do not support the judgment entered by the trial court on the verdict of the jury.
Section 241 of our Kentucky Constitution provides: ...
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