Bevis v. Vanceburg Telephone Co.

• Decision Date: 20 November 1908
• Citation: 113 S.W. 811,132 Ky. 385
• Parties: BEVIS v. VANCEBURG TELEPHONE CO.
• Court: Kentucky Court of Appeals

113 S.W. 811

132 Ky. 385

BEVIS v. VANCEBURG TELEPHONE CO.

Court of Appeals of Kentucky.

November 20, 1908

Appeal from Circuit Court, Lewis County.

"To be officially reported."

Action by Fanny L. Bevis against the Vanceburg Telephone Company. Judgment for defendant, and plaintiff appeals. Reversed, and remanded for new trial.

W. Elmo Darragh, Thos. R. Phister, R. D. Wilson, and A. D. Cole, for appellant.

W. C Halbert, for appellee.

O'REAR C.J.

On a former appeal of this case the opinion states the facts as then appearing and the law applicable to them. As the case then went off on a peremptory instruction, the plaintiff's case only appeared. Bevis v. Vanceburg Telephone Company, 121 Ky. 182, 89 S.W. 126. On a return of the case the issue was submitted to the jury, resulting in a verdict and judgment for appellee.

The case is, briefly summarized, that Miss Bevis, while driving in the nighttime along one of the public roads of Lewis county, was severely injured by the buggy's running against one of appellee's poles, which was situated in the road, and it is claimed so far out in or near to the traveled way as to imperil persons using the highway when driving vehicles by that point. It may be conceded that the presence of the telephone pole was a nuisance, in the nature of a purpresture. Appellant did not know of its existence. Her companion, who was driving the buggy, and who had entire control of it for the purposes of the trip, is not shown to have been aware of the situation of the pole. In attempting to drive around and pass a buggy ahead of them, the horse was pulled to one side of the road, whereby the buggy was brought into contact with the pole, throwing appellant out, and injuring her as stated. In the former opinion it was said that the driver's negligence, if there was any, was not to be imputed to appellant. There is no evidence of appellant's negligence in the matter, as the term "negligence" is used in law. There was some evidence that appellant's companion was driving rapidly but not necessarily recklessly. Except for the presence of the telephone pole, there is no reason to believe any bad result would have ensued from it, and not then, except for the buggy in front, which it was attempting to pass. There is not negligence in the mere fact that the driver of one buggy may desire and attempt to drive faster than the one ahead going the same way. One may be in a hurry, properly so, and the other not.

There was a plea of contributory negligence; but, as there was not evidence to support it, the trial court did not instruct the jury on that score. The court did instruct the jury, however that, before the plaintiff was entitled to recover a verdict they should believe from the evidence that the plaintiff was herself in the exercise of ordinary care for her own safety in addition to believing the establishment of the various ingredients of actionable negligence on the part of the defendant. The question is whether the interpolation of the condition as to plaintiff's exercising due care for her own safety was proper, and if not, whether it was prejudicial. In this jurisdiction contributory negligence is a defense, and to be available must be pleaded, and, if an issue is made, must be proved. It is defined as being the failure by the plaintiff to exercise ordinary care for his own safety, but for which the injury would not have occurred, notwithstanding the defendant's negligence. The law endeavors to fix the responsibility upon the agent of the proximate cause. There is no dividing it, resting it partly upon one concurrent cause, and partly upon...