Bruce's Adm'x v. Callahan

• Citation: 213 S.W. 557,185 Ky. 1
• Parties: BRUCE'S ADM'X v. CALLAHAN.
• Decision Date: 20 June 1919
• Court: Court of Appeals of Kentucky

213 S.W. 557

185 Ky. 1

BRUCE'S ADM'X v. CALLAHAN.

Court of Appeals of Kentucky.

June 20, 1919

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

Action by Anna Foster Bruce's administratrix against Patrick H Callahan.

Judgment for defendant, and plaintiff appeals. Judgment affirmed.

David R. Castleman, of Louisville, for appellant.

O'Neal & O'Neal and Edwards, Ogden & Peak, all of Louisville for appellee.

SAMPSON J.

An automobile owned by Patrick H. Callahan and driven by his minor daughter, Edith, on Fourth street in Louisville, struck and killed Mrs. Anna Foster Bruce on the morning of June 7, 1917, and this action was instituted by her personal representative against Callahan to recover $25,000 in damages. The accident happened between 11 and 12 o'clock in the busiest part of Fourth street, about midway between Green and Walnut streets. Mrs. Bruce and her daughter, residents of Henry county, Ky. went into the city on the morning of the injury and death for the purpose of and were engaged in shopping along on the east side of Fourth street. They decided to cross the street to another store on the opposite side. Many automobiles were parked near the curb on either side of the street. At this point the street, including the pavements, was about 60 feet wide. Near the center were double street car tracks, one for north-bound cars and the other for south-bound cars. Between the curb and the nearest rail of the street car track on either side was a space of 11 1/2 feet, and these spaces are called driveways. The rails of the street car track are 5 feet apart, and there is a space of 5 feet between the north-bound street car track and the south-bound track. Automobiles were plentiful upon Fourth street that morning. Besides those parked near the curb, others were in motion passing up and down the street. As Mrs. Bruce and her daughter left the east side to go to the west side of the street, they passed between two parked automobiles, and as they came to the driveway beyond they observed a car approaching from the south. They hesitated. Then Mrs. Bruce decided to pass in front of the car, and did so, but the daughter remained on the east side. In passing the car which was driven by Mr. Chapman, Mrs. Bruce kept her eyes fixed on it, and appeared to be somewhat perturbed and very anxious to avoid collision with it. After she had passed the Chapman car she continued her course towards the west side of the street, when she was struck by the Callahan car, moving south, and her body was picked up on the south-bound street car track. There is some contrariety in the evidence as to just where Mrs. Bruce was at the time the car struck her, and also as to the distance which she traveled after she had cleared the Chapman car before she entered the danger zone of the Callahan car. There is also conflict in the evidence as to whether Mrs. Bruce saw the Callahan car or realized that it was approaching before it struck her. On this subject both Mr. Chapman and Miss Bruce testify that Mrs. Bruce had her attention fixed upon the Chapman car, and that she did not observe the approach of the Callahan car until about the time it struck her, while Miss Callahan, who was driving the Callahan car, deposes that Mrs. Bruce was looking at her and her car while the car was some 20 feet away from the place where it struck Mrs. Bruce, and that she first hesitated in the street, and then suddenly changed her mind and stepped in front of the car, causing the accident.

Upon a trial of the case before a jury a verdict was returned for Callahan, and the administratrix of Mrs. Bruce appeals.

A reversal of the judgment is asked by the administratrix for two alleged errors committed by the trial court in instructing the jury. The court gave to the jury six instructions, but only the third and fourth are assailed by counsel as erroneous. The instructions are as follows:

"(1) It was the duty of Miss Edith Callahan, who was operating the automobile at the time in question, to run the automobile at a reasonable rate of speed, to keep a reasonable lookout for persons upon the street in front of the automobile, or so near in front of it as to be in danger of being struck by the automobile, and at such place or places as she had reasonable grounds to anticipate that persons would be upon the carriage way of the street in front of the machine, or so near thereto as to be in danger of being struck by the machine, to give timely warning of the approach of the automobile to such place by sounding the horn, and to keep the automobile under reasonable control, and to exercise ordinary care to so operate the automobile as to avoid coming into collision with persons on the street; and if you believe from the evidence in this case that she failed to perform such duties, or any of them, and thereby caused the automobile to collide with Mrs. Anna Foster Bruce, and her death resulted therefrom, then the law of the case is for the plaintiff and against the defendant, P. H. Callahan, and you should so find. But, unless you so believe from the evidence, the law of the case is for the defendant, and you should so find.

(2) It was the duty of Mrs. Anna Foster Bruce to exercise ordinary care to avoid coming into collision with, or being struck by, an automobile on the street, and if you believe from the evidence in this case that she failed to exercise such care, and her failure, if any, so contributed to cause or bring about her injury that but for her failure she would not have been struck by the automobile nor injured, the law of the case is for defendant, P. H. Callahan, and you should so find, although you may believe from the evidence that the operator of the automobile failed in one or more of her duties as submitted to you in the first instruction.

(3) If you believe from the evidence that plaintiff's decedent, while in a position of safety, saw the defendant's car approaching, then I instruct you that the duty did not rest upon the operator of the machine to sound a warning thereafter.

(4) The court further instructs you that, if you believe from the evidence that the place where plaintiff's decedent was crossing Fourth street, in the light of all conditions and circumstances which you believe from the evidence are proven in the case, was unusually dangerous, then I instruct you that plaintiff's decedent, Mrs. Anna Foster Bruce, was required to exercise increased care for her own safety commensurate with said increased danger, if there was any, and if she failed to exercise said increased care, and by reason thereof she was struck and lost her life, the law of the case is for the defendant, and you should so find, although you may believe from the evidence that defendant's daughter, who was driving the automobile, failed in any one or more of her duties as submitted in the first instruction.

(5) 'Ordinary care' means that degree of care which ordinarily careful, prudent persons usually exercise under like or similar circumstances as are shown to exist in this case.

(6) If you find for plaintiff, you will award to plaintiff such sum in damages as you believe from the evidence will reasonably and fairly compensate the estate of Anna Foster Bruce for the loss resulting from the destruction of her power to earn money occasioned by her death, not to exceed the sum of $25,000, the amount prayed...