Burton v. Spurlock's Adm'R.
| Decision Date | 18 May 1943 |
| Citation | 294 Ky. 336 |
| Parties | Burton v. Spurlock's Adm'r. |
| Court | United States State Supreme Court — District of Kentucky |
1. Automobiles; New Trial. — In action for death of child struck by taxicab after running from behind standing bus, verdict for dedefendant was not flagrantly against the evidence so as to warrant new trial, but was sustained by evidence.
2. Death. — In action by personal representative for death of child for benefit of parents, parents' negligence directly and proximately contributing to the death will preclude recovery (KRS 411.130).
3. Death. — In action for death of child, parents' contributory negligence is usually for the jury (KRS 411.130).
4. Death; New Trial. — In action for death of child struck by taxicab after running from behind standing bus, pleadings and proof warranted instruction on contributory negligence of parents, and giving of instructions was not ground for new trial.
5. New Trial. — Where concrete instructions set out facts constituting a definition of contributory negligence though the term was not used, and plaintiff offered no instruction on the subject, plaintiff was not entitled to new trial after verdict for defendant on ground of failure to define contributory negligence.
6. New Trial. — On motion for new trial after verdict for defendant, plaintiff could not take advantage of error in instruction on contributory negligence given on plaintiff's motion, since the maxim "omnis consensus tollit errorem" applies.
7. New Trial. — Under the maxim "omnis consensus tollit errorem," one who participates in or invites an error may not complain.
8. Appeal and Error; New Trial. — The trial court is vested with sound discretion in disposing of motion for new trial, and unless that discretion has been abused, reviewing court will not disturb its ruling.
9. New Trial. — The trial court cannot grant new trial arbitrarily or capriciously or where the record fails to disclose a sound reason therefor.
10. Appeal and Error. — An appeal from an order setting aside a verdict and judgment and granting new trial is held in abeyance until another trial is had and appeal is taken from the last judgment.
11. Appeal and Error. — To preserve right of appeal from order granting new trial, exception must be taken, appeal prayed, and bill of exceptions prepared and tendered within the proper time.
12. Appeal and Error. — Where bill of exceptions prepared and tendered by defendant when new trial was granted to plaintiff was made part of bill of exceptions on last trial, wherein defendant appealed from judgment for plaintiff, there were in effect two appeals, and hence defendant had not lost right to have original judgment for defendant reinstated, by failure to move to set aside the last judgment and reinstate the first verdict and judgment.
13. Appeal and Error. — An order granting new trial is not a "final order" in the sense that it may be appealed from immediately or separately.
14. New Trial. — Where error in granting new trial after first verdict for defendant appeared in the record, trial court was not confined on subsequent trial to specific grounds set forth in motion for new trial after verdict for plaintiff, but could set aside the last verdict and judgment for any reason appearing in the record.
Appeal from Harlan Circuit Court.
R. Kent Sampson and D.B. Smith, and James W. Smith for appellant.
J.B. Carter, Astor Hogg, and J.B. Wall for appellee.
Before James S. Forester, Judge.
Reversing.
On December 10, 1940, at about 4 o'clock p.m., Peggy Joyce Spurlock, an infant about six years of age, was struck and killed by an automobile at Cawood, an unincorporated town, on the highway between Harlan, Kentucky, and Pennington Gap, Virginia. The automobile was being operated as a taxi and was driven by Jack Pennington. It is claimed that it was owned by the appellant, Maud Jones Burton, but proof of its ownership was meager. Dewitt Spurlock, father of the deceased child, qualified as administrator of her estate, and brought suit to recover damages for her death.
Cawood has a population of 700 to 900, and extends along the highway a distance of one-half mile. Several houses front on the north side of the road. Across the road is a drain, or ditch, then the tracks of the Louisville & Nashville Railroad, and beyond the railroad a row of houses, fifteen or twenty in number. Over the ditch is a footbridge used by pedestrians going to and from these houses. Mrs. Spurlock, mother of the deceased, was distributing agent for a Knoxville newspaper and for about a month the deceased had been delivering papers for her mother to the subscribers. Her father knew of this arrangement and approved of it. The Spurlock home was on the north side of the highway almost opposite the footbridge. On the afternoon in question deceased had crossed the footbridge and railroad to deliver papers to subscribers on the south side of the railroad. It was on her return trip that she was killed. A bus traveling from Harlan to Pennington Gap had stopped near the footbridge to let off or take on a passenger. The rear end of the bus was near the end of the footbridge and its left side was about two feet from the center of the highway, the surfaced part of which was about 18 feet in width. Another bus, described as a V.T.C. bus, was approaching from the opposite direction, traveling toward Harlan. It stopped about 100 feet from the scene of the accident and while it was stopped or just as it was starting the taxi driven by Pennington passed it. According to the great preponderance of the evidence, the deceased ran from behind the bus standing near the footbridge and ran immediately in front of the taxi when the front end of the taxi was about five feet from the rear of the bus, which was headed in the opposite direction. The child was struck by the left front fender of the taxi and lived only a few minutes. Pennington turned to the right and ran into a ditch and against a fence. He said that his taxi traveled about 15 feet after it struck the child, while witnesses for the appellee fixed the distance at 70 feet. Pennington testified that he did not see the child until she was about five feet in front of his taxi, and that he could not have seen her because she came from behind the parked bus. All of the witnesses except one estimated the speed of the taxi at 15 to 25 miles an hour. One of the witnesses who was a passenger on the V.T.C. bus estimated the speed at 40 to 45 miles an hour. Pauline Spurlock, the 18-year old sister of the deceased, was standing on the road behind the parked bus and about 150 feet from the place where the accident occurred. She testified that she saw her sister cross the footbridge, run behind the parked bus and into the path of the taxi. The witness saw the taxi approaching and knew it would strike her sister. She called to her sister, but the latter apparently failed to hear her. She testified that the deceased was "skipping, sort of running along," and that "she ran out from behind the bus right into this car." Traffic on the highway through the town of Cawood is heavy.
At the first trial on August 18, 1941, the jury returned a verdict for the defendant. The plaintiff filed his motion and grounds for a new trial and on September 17, 1941, the court sustained the motion, set aside the verdict and judgment, and granted the plaintiff a new trial. The defendant moved the court to include in its order the reasons and grounds for sustaining the plaintiff's motion and granting the new trial, and the court overruled her motion. The defendant prayed an appeal to the Court of Appeals from the order setting aside the verdict and judgment and granting plaintiff a new trial, and she was given until a day in the succeeding term of court to file her bill of exceptions and transcript of the evidence and, within the time granted, she tendered her bill of exceptions together with a transcript of the evidence which was examined, approved, and signed by the presiding judge. The second trial was begun on November 26, 1941, but a mistrial resulted because a witness for the plaintiff brought out the fact that insurance was involved. The third trial resulted in a verdict for the plaintiff in the sum of $10,000, and from the judgment entered thereon this appeal is prosecuted. The record of the first trial has been made a part of this record.
Appellant insists that the trial court abused its discretion in setting aside the verdict of the jury on the first trial without any reason or without any error being shown by the record, and that the judgment on the last trial should be reversed and the trial court directed to reinstate the judgment rendered on the first trial. A number of other grounds are urged for reversal of the last judgment, but we need not consider them since we have concluded that the first ground must be sustained.
In his motion for a new trial, after the verdict and judgment in the first trial, the plaintiff relied upon six grounds: (1 and 2) Errors in admission and rejection of evidence; (3) error in giving instruction E offered by the defendant; (4) error in failing to define contributory negligence in the instructions; (5) the verdict was flagrantly against the weight of the evidence; and (6) the verdict was not sustained by the evidence. Appellee does not claim that there was any merit in grounds 1, 2, 5, and 6. No error in the admission or rejection of evidence on the first trial prejudicial to the plaintiff is pointed out, and a careful reading of the record discloses none. The verdict was not only not flagrantly against the evidence, but, on the contrary, was sustained by a great preponderance of the evidence. Instruction E told the jury that if they found from all the evidence that the parents of plaintiff's decedent negligently sent or permitted her to go upon the highway and across the highway and place herself in a position of danger upon and near the...
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