Braden's Administratrix v. Liston

• Decision Date: 08 March 1935
• Citation: 258 Ky. 44
• Parties: Braden's Administratrix v. Liston.
• Court: United States State Supreme Court — District of Kentucky

258 Ky. 44

Braden's Administratrix v. Liston.

Court of Appeals of Kentucky. Common Pleas Branch, Fourth Division.

Decided December 7, 1934.

As Modified on Denial of Rehearing March 8, 1935.

1. Automobiles. — If pedestrian ran into side of motortruck, presence of truck was but a condition and not a cause of pedestrian's death, precluding application of last clear chance doctrine.

2. Negligence. — Plaintiff specifying negligence constituting alleged basis of recovery is confined to negligence specified.

3. Negligence. — Last clear chance doctrine may be presented under general allegation of negligence.

4. Automobiles. — Truck driver was under duty of averting collision with pedestrian if driver could have done so by use of means at his command, even though pedestrian was contributorily negligent.

5. Automobiles. — Where plaintiff's right to recover for pedestrian's death is rested on last clear chance doctrine, motorist's liability must be based on what he did or did not do after pedestrian's peril was, or should have been, discovered, and not on motorist's previous negligence.

6. Automobiles. — Where plaintiff rested right to recover for pedestrian's death on last clear chance doctrine, evidence that brakes on defendant's truck were defective held properly excluded, since evidence related to matter of defendant's antecedent negligence (Ky. Stats., secs. 466, 2739g-26).

7. Automobiles. — Where plaintiff rested cause of action for pedestrian's death on last clear chance rule, speed at which defendant's truck was being driven at time pedestrian started to cross its

pathway held properly excluded, being matter of driver's antecedent negligence (Ky. Stats., sec. 2739g-51, subsec. 2).

Appeal from Jefferson Circuit Court

J.H. HOLLADAY for appellant.

WOODWARD, HAMILTON & HOBSON for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Affirming.

About 8:20 a.m. February 24, 1933, Dennis Braden, aged 82, was struck by a light Ford truck belonging to J.J. Liston. Braden died therefrom three hours later. His administratrix sued to recover for his death, the jury found for Liston, and she appeals.

This occurred on the Eighteenth Street road a short distance from the southern boundary of the city of Louisville. Liston's truck was being driven north on this highway, and Braden was crossing it from west to east when he was struck. The roadway is 22 feet wide; the speed of the truck, from an average of the estimates of the witnesses, was about 30 miles per hour, which is about 44 feet per second. The driver of the truck saw Braden and blew his horn. Braden stopped near the midde of the roadway, and the driver of the truck came ahead. Braden hesitated for a moment, then, when the truck was less than 30 feet away, started hurriedly across the highway, and was struck by the truck, and killed.

The overwhelming weight of the evidence is that Braden ran into the side of the truck, and the scars upon the rear view mirror and the left rear fender indicate it happened that way but plaintiff had one witness who testified Braden was struck by the front of the truck but he admits the truck did not run over Mr. Braden.

The Pleadings.

Plaintiff in her original petition charged Braden was killed by the negligent operation of this truck. Liston denied his truck was negligently operated, and pleaded contributory negligence, which the administratrix denied. Nowhere in the pleading was there any charge of defective appliances. The defendant demurred to this petition, and its demurrer was overruled. The better plan to follow in dealing with such a petition is the course that was followed and approved in Ohio Valley Coal & Mining Co. v. Heine, 159 Ky. 586, 167 S.W. 873.

Later plaintiff amended her petition and alleged that the driver discovered the peril, or by the exercise of ordinary care could have discovered the peril, of the deceased, Dennis Braden, in time to have stopped the truck or to have prevented the accident. That amendment admits Braden had put himself in a place of peril. It specifies the negligence of the defendant to consist in failing to stop or change the course of the truck after Braden's peril was seen, or in the exercise of ordinary care should have been seen. If Braden ran into the side of this truck, then the presence of the truck was but a condition and not a cause of his death and there is no room for the application of the last clear chance doctrine. See Knecht v. Buckshorn, 233 Ky. 329, 25 S.W. (2d) 727.

The effect of the above amendment was to confine plaintiff's right of recovery to some omission of duty by the defendant in such a situation. Having specified the negligence, the plaintiff is confined to the negligence specified. Louisville & N.R. Co. v. Kirby, 173 Ky. 399, 191 S.W. 113; Pullman Co. v. Pulliam, 187 Ky. 213, 218 S.W. 1005; Belcher v. Sandy Valley & E. Ry. Co., 207 Ky. 560, 269 S.W. 729; Louisville & N. R. Co. v. Morgan's Adm'r, 225 Ky. 447, 9 S.W. (2d) 212; Park Circuit & Realty Co. v. Coulter, 233 Ky. 1, 24 S.W. (2d) 942.

There was no necessity for the plaintiff to have amended her petition, as she had the right to present the last clear chance doctrine under her general allegation. Kentucky Traction & Terminal Co. v. Wilburn, 206 Ky. 510, 267 S.W. 1090. But she did amend, and having done so she is bound by her amendment and her evidence must be confined to the negligence specified in it. Manwaring v. Geisler, 191 Ky. 532, 230 S. W. 918, 18 A.L.R. 192, and Id., 196 Ky. 110, 244 S.W. 292; American Savings Life Ins. Co. v. Riplinger, 249 Ky. 8, 60 S.W. (2d) 115; and Stacy v. Williams, 253 Ky. 353, 69 S.W. (2d) 697.

The Brakes on the Truck.

On the trial plaintiff sought to prove the brakes on this truck were defective, and the court properly refused to permit her to do so.

By section 2739g-26, Ky. St., the operation of an automobile with brakes that are defective or out of order is made unlawful, and by section 466, Ky. St., any one injured by the violation of a statute may recover therefor.

Plaintiff had pitched her right to recover upon the alleged failure of the driver of the truck to use ordinary care to avoid injuring Braden after his peril was or should have been discovered. It was the duty of the driver to avert this accident if he could do so by the use of the means at his command. This brings us to a question upon which we find this in 45 C.J. p. 993, sec. 544:

"The courts are not in agreement on the question whether recovery may be had where defendant, although not committing any negligent act subsequent to plaintiff's negligence, was unable, by reason of his own previous negligence, to exercise such care as would have avoided the result of plaintiff's negligence. Recovery is permitted in some jurisdictions, while in others recovery is denied where the preexisting cause is not susceptible of being removed after the discovery of the danger and before the injury is done."

This court is not there listed as subscribing to either view, but we feel this court has taken a position and that antecedent negligence is not to be considered, for in Blue Grass Traction Co. v. Ingles, 140 Ky. 488, 131 S.W. 278, we condemned a last clear chance instruction that did not contain the words "if he can do so in the exercise of ordinary care with the means at his command." This court prepared an instruction on the last clear chance in Chesapeake & O. Ry. Co. v. Montjoy's Adm'r, 148 Ky. 279, 146 S.W. 371, 374, in which appear the words "in the exercise of all reasonable means at his command." This court in reversing the judgment in Louisville & N.R. Co. v. Harrod's Adm'r, 155 Ky. 155, 159 S.W. 685, 47 L.R.A. (N.S.) 918, directed an instruction to be given containing the words "in the exercise of ordinary care, with the means at his command." In Finnegan's Adm'x v. Floyd G. & A. Livery Co., 214 Ky. 416, 283 S.W. 402, 405 (an automobile case), we said it was the duty of the driver "to use all means at his hands." By the use of further time, the number of such cases could be multiplied several times, but these are enough to...