Carr v. Warford

• Decision Date: 20 April 1923
• Parties: CARR v. WARFORD.
• Court: Kentucky Court of Appeals

249 S.W. 1024

198 Ky. 690

CARR v. WARFORD.

Court of Appeals of Kentucky.

April 20, 1923

Appeal from Circuit Court, Anderson County.

Action by William Warford against Edgar Carr. Judgment for plaintiff, and defendant appeals. Affirmed.

Edwards Ogden & Peak, of Louisville, and L. W. McKee, of Lawrenceburg, for appellant.

Lillard Carter, of Lawrenceburg, for appellee.

MOORMAN J.

While crossing South Main street in the city of Lawrenceburg William Warford was struck by an automobile driven by Edgar Carr. Warford recovered a judgment in damages for $500 against Carr in the Anderson circuit court, to reverse which this appeal is prosecuted.

The accident occurred about 5 o'clock in the afternoon of August 19, 1920. Appellee, who was 65 years of age, had started diagonally across the street in Lawrenceburg to a soft drink stand, and when more than halfway across was struck by the left front fender of appellant's machine and knocked down and run over by the left hind wheel. The evidence is conflicting as to the extent of the traffic on the street at that time. The Anderson County Fair was in progress. Appellee admits that he was not crossing at an intersection, but claims that the traffic was light. Appellant contends that there were many automobiles on the street, and that appellee jumped in front of his automobile in trying to avoid a collision with another. There is evidence to show that appellee did not look in the direction from which the machine was approaching. Appellee and other witnesses testified that appellant gave no signal of his approach. Appellant, however, said that he blew his horn, expected appellee to stop when the horn was blown, and when he did not stop attempted to avoid the collision by swerving the machine and stopping it. There is some corroboration of this evidence. After the injury appellee proceeded to the soft drink stand, but in a few minnutes became ill, and, according to the testimony of his physician, developed a serious injury as a result of the accident.

It is earnestly argued that the evidence is not sufficient to support the verdict, even if it be conceded that there was some evidence authorizing the submission of the case to the jury. We cannot sustain this contention, for, although it is not shown that appellant was driving at an excessive rate of speed, there is evidence to the effect that he did not sound his horn nor signal his approach to appellee, which, with other testimony tending to show negligence in the operation of the machine after he could have discovered appellee's peril, was in our opinion sufficient to take the case to the jury and sustain its finding. It may be conceded, in this connection, that there was evidence of negligence on the part of appellee, but that question, as well as that of appellant's negligence, was for the jury, and we are unable to say that the finding of the jury is so flagrantly against the evidence as to require the setting aside of the verdict and the granting of a new trial.

Complaint is made of the court's ruling in excluding from the jury a statement made by one of the witnesses who, in response to a question as to what he saw, said:

"My attention was called by somebody saying, 'Look yonder; he jumped out of the way and jumped in the way of another one.' "

The witness was a traffic officer in Lawrenceburg, and was some distance from the place where the accident occurred. He did not say who made this statement. It was not made by appellee nor by any one in his presence. Appellant contends, however that it was a part of the res gestæ. Conceding its competency from that point of view, still it would have been largely cumulative, for, in addition to other evidence to that effect, the same witness tesified...