Burch v. Byrd
| Decision Date | 22 February 1952 |
| Parties | BURCH v. BYRD. |
| Court | United States State Supreme Court — District of Kentucky |
A. E. Funk, Jr., Middlesboro, W. R. Lay and Grant Knuckles, Pineville, for appellant.
James W. Smith and F. R. Whalin, Middlesboro, Henry L. Bryant, Pineville, for appellee.
CLAY, Commissioner.
Sammy Burch, a four year old boy, was killed as the result of coming in contract with a moving truck owned by appellee. In a suit by appellant, his administrator, the jury denied recovery. On this appeal it is urged: (1) the trial court erroneously gave an instruction on the contributory negligence of Sammy's parents; and (2) appellant was entitled to a directed verdict decause the physical facts pointed unerringly to the negligence of the truck driver.
The accident took place one afternoon in Middlesboro near the intersection of highway 25 E and Cherry Avenue. The highway is 16 feet wide. The truck was proceeding south. The boy was standing on the east, or left hand side, facing away from the highway. According to the testimony of the driver and the person riding with him, when the truck was 8 or 10 feet from the boy he turned and darted out into the highway. Another witness stated that he saw the child going toward the truck about middleways between the front and rear wheels, and the left rear wheel knocked him down.
The child was unattended when the accident occurred at about 4:00 p. m. He had spent most of the day with his grandmother who lived on Cherry Street, west of the intersection. The parents resided on the next street over from Cherry, and they had sent the boy to his grandmother's that morning. During the day the child's mother had authorized him to go to Owen's grocery store, on the southwest corner of the highway and Cherry Street. It appears this was the second trip he had made that day, and it did not require him to go upon the highway. In the past he had occasionally been permitted to go to the store by himself.
The court instructed the jury in substance that if they believed the use of the highway where the accident occurred was dangerous and not reasonable safe for children, and further believed that Sammy's parents, or either of them, negligently permitted the child to be on that highway unattended, and the accident would not have happened without such negligence, then they should find for the defendant, even though they believed the driver was negligent. Such instruction was proper provided there was evidence of such parental negligence. See Wheat's Adm'r v. Gray, 309 Ky. 593, 218 S.W.2d 400, 7 A.L.R.2d 1336.
Appellant insists that since the...
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Wood v. Dennison's Adm'r
...go unattended upon the street or highway or where it was left in the care and custody of another infant child. For example, in Burch v. Byrd, Ky., 246 S.W.2d 595, the mother permitted her four year old son to go unattended across a heavily traveled highway to a grocery, and the child was st......
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Melton v. OF Shearer & Sons, Inc.
...negligence of the father would be a defense in bar to the action. Emerine v. Ford, 254 S.W. 2d 938, 941 (Ky.1953); Burch v. Byrd, 246 S.W.2d 595 (Ky.1952). Appellant charges error in the District Judge's refusal to allow plaintiff's counsel, having called him to the stand, to cross-examine ......
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Meadors v. Gregory
...is an area between these extremes where the question of whether the parents are negligent is for the jury's determination. Burch v. Byrd, Ky., 246 S.W.2d 595 (1952), was concerned with a four-year-old child who was killed while crossing the street. The parents had permitted the child to go ......
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Dowell v. Bivins
...the duty to exercise such care and supervision over an infant as to reasonably prevent him from getting out on a highway. Burch v. Byrd, Ky., 246 S.W.2d 595 (1952). The mere fact that a child of tender age has been killed, while at large and unattended on a public highway, does not necessar......