C.L. & L. Motor Express Co., Inc. v. Achenbach
| Decision Date | 12 February 1935 |
| Citation | 259 Ky. 228 |
| Parties | C.L. & L. Motor Express Co., Inc., et al. v. Achenbach (two cases). |
| Court | United States State Supreme Court — District of Kentucky |
1. New Trial. — Verdict must be palpably or flagrantly against weight of evidence to justify court in vacating verdict and granting new trial (Civil Code of Practice, sec. 340).
2. New Trial. — In determining whether verdict is against weight of evidence, neither preponderance or volume of testimony nor number of witnesses is controlling, but quality of entire evidence is to be weighed or balanced (Civil Code of Practice, sec. 340).
3. New Trial. — In actions by automobile driver and occupant for injuries sustained in head-on collision, verdict that defendant's truck was traveling on wrong side of highway held contrary to evidence, entitling defendant to new trial (Civil Code of Practice, sec. 340).
4. Corporations. — Each corporation is distinct entity, but court will look beyond form when corporation is mere dummy or alter ego or conduit of individuals or of another corporation, and it is necessary to disregard legal fiction to circumvent fraud or to remove mere shield against responsibility.
5. Corporations. — Where officers of storage company owned practically all of stock of express company, but there was one officer and stockholder of express company who had no interest in storage company, corporate entity could not under evidence be disregarded so as to render storage company liable for negligence of express company's truck driver.
6. Automobiles. — Evidence disclosing that storage company's stockholders owned practically all of stock of express company, that storage company's employee drove express company's truck to home of express company's employee, who thereafter drove truck, for his personal accommodation, that storage company's employee assisted in loading truck, and was riding therein at time of accident, and that item of freight was transported for storage company, but that express company alone controlled and had right to control driver, held insufficient to take case to jury on question of storage company's joint liability for negligence of truck driver.
7. Automobiles. — In automobile occupant's action for injuries sustained in head-on collision, evidence held not sufficient to authorize contributory negligence instruction on part of occupant.
Appeal from Jefferson Circuit Court
GORDON, LAURENT & OGDEN and STOLL, MUIR, TOWNSEND & PARK for appellants.
RICHARDSON & RICHARDSON and HAROLD R. MARQUETTE for appellees.
Reversing.
Upon the joint trial of suits for damages growing out of an automobile accident, filed by the appellees, Henry Achenbach and his daughter, Miss Elizabeth Achenbach, against the appellants C.L. & L. Motor Express Company, and Union Transfer & Storage Company, judgments for $2,674 and $13,650, respectively, were recovered. Both parties were seriously injured. The principal grounds for reversal of the judgments relate to two distinct statements of fact. In respect of the matter of negligence, it is contended by both appellants, who were charged to be jointly responsible, that the verdict is flagrantly against the evidence. The Union Transfer & Storage Company (to be referred to as the Union Company) maintains that there was not a scintilla of evidence tending to prove liability upon its part for the act of the driver of the truck, found by the jury to be negligent. Arguments that incompetent evidence was admitted and a proper instruction refused are also presented.
The accident occurred in the afternoon of July 30, 1932, in St. Matthews, a suburb of Louisville, on United States highway No. 60. The road runs east and west, has a 25-foot paved surface with 4 or 5 feet of macadam on each side. It is level and unobstructed beyond that about the same width on each side, so it may be regarded as a roadway 45 feet wide. Along the north side are store buildings and a filling station. On the south side a street called the Lexington road diverges at a sharp angle.
The two plaintiffs agree in their testimony, which may be thus summarized: With Mrs. Henry Achenbach, the wife and mother, the plaintiffs were driving west-wardly into Louisville. After having stopped at a traffic light, Mr. Achenbach drove slowly behind the Plymouth car of Richard W. Myers, which stopped on the right hand or north side, at the intersection of the Lexington road, without a signal, but about halfway on the paving and halfway on the berm of the road. Plaintiffs' car, going 10 to 15 miles an hour, was then about 30 feet behind it. Achenbach turned slightly to his left to pass this standing automobile, and both plaintiffs saw a truck approaching from the west about 300 feet away. It was passing an automobile coming in the same direction. This put the truck on the north or its left side of the road. As it got closer, the plaintiffs' car was immediately stopped 12 or 14 feet behind the Myers car at a slight angle, the front being cut a little to the left, but still entirely on the right of the center of the road. The truck came on, running 30 or 35 miles an hour on the wrong side of the road, and struck the plaintiffs' car six seconds after it had come to a stop. Achenbach testified that he had stopped to give the truck an opportunity to pass on its proper side of the road, and that he did not have time to back out of the way. About the only difference between the evidence of Miss Achenbach and that of her father is that she testified that their car was stopped "in back" of Myers' machine. All agree that the automobile was knocked or shoved over to the extreme south side of the road. This was to the right of the truck and the left of the automobile.
The plaintiffs introduced the driver of the truck for the purpose of showing his connection with the defendants. His cross-examination and the evidence of other witnesses called by plaintiffs, as we construe their testimony, contradicted plaintiffs and sustained the claims of the defendants as to how the accident occurred. The driver of the truck testified that he did not remember passing any car going in the same direction was traveling about 20 miles per hour on the right side of the road, and slowed down as he approached the street intersection, and went into third gear. Several automobiles were in line meeting him. A machine had run along practically parallel with him over to his right on the Lexington road, and it stopped about 10 feet from highway No. 60. The Myers car stopped well up toward the middle of the road and not half over on the berm. When he was about the center of that car and in the act of passing it, the Achenbach car came from behind it. He put on his brakes and turned to the right, but the automobile's right front wheel struck the truck at an angle just inside its left front wheel. After the collision the truck was over near the south side of the road with a part of the automobile under the bumper.
Myers' testimony is that he saw the truck approaching and stopped to let it get by before turning to the left to enter the Lexington road. He was about two feet from the center of the highway, and no part of his machine was upon the macadam or berm. The truck did not pass any car and came on upon its right side of the road but close enough to the center that he could have touched it by reaching out his arm. Before stopping he had held out his hand as a signal that he was going to do so, and heard the screech of brakes right behind him. The truck was then 4 or 5 feet in front of his car, and the collision occurred about 10 feet behind him.
Lloyd Alford was in the car over on the Lexington road. He stopped to let the truck go by. It was traveling on the right side of the road up close to the center, but not straddle it. It did not pass any other car going in the same direction, and slowed down at the place. The Myers automobile had stopped partly on and partly off the pavement, but just a few feet from the center. He saw the Achenbach car crossing the road and it was moving when the collision occurred near the center of the highway. A county policeman, who quickly arrived on the scene, testified that there were skid marks 3 or 4 feet north of the center of the road for about 20 feet, and these turned southwesterly to where it appeared that the wheel or tire had been knocked off; then the marks on the road were as if the car had been knocked or dragged 25 or 30 feet southeasterly over to the south side where the wreck was. A garage man, to whom the plaintiffs' car was taken, testified that the bumper of the truck had hit its right front wheel and mashed in the right door. A picture filed in the record indicates clearly that that is where the machine was struck.
We turn to the defendants' evidence. They introduced four bystanders who apparently were entirely disinterested. Their testimony is all alike and to the effect that the Myers automobile stopped a foot or two feet from the center of the highway and not upon the berm. The screeching or grinding of brakes upon the Achenbach car had attracted their attention. They say that although it was moving slowly it cut to its left and darted out from behind the Myers car when the truck was 10, 12, or 15 feet away, and it was about 2 feet south of the center of the paving when it was struck. This clearly proves that it was on the wrong side, but the right side for the truck. A mechanic testified that the truck was hit or damaged on the left front; and another that it had a governor which limited its speed to 30 miles per hour.
Section 340, Civil Code of Practice, authorizes the courts to vacate a verdict and grant another trial when it is not sustained by sufficient evidence or is contrary to law. We have a legion of cases construing and applying this statute. The interpretation is usually and comprehensively stated to be that the verdict must be palpably or flagrantly...
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