Challinor v. Axton
| Decision Date | 18 September 1932 |
| Citation | 246 Ky. 76 |
| Parties | Challinor v. Axton et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Appeal and Error. — Motion for new trial because of irregularities in proceeding depriving plaintiff of fair trial held too general (Civil Code of Practice, sec. 340).
2. Appeal and Error. — Motion for new trial because verdict was contrary to law held too general (Civil Code of Practice, sec. 340).
3. Appeal and Error. — Motion for new trial because of errors of law occurring at trial and excepted to by plaintiff at time thereof held too general (Civil Code of Practice, sec. 340).
4. Evidence. — Testimony of witness, who did not see collision, that she judged from roar of defendant's automobile that it was traveling 50 or 60 miles per hour, held incompetent.
5. Automobiles. — Evidence sustained verdict that collision with plaintiff's automobile turning to left into private driveway was not caused by overtaking motorist's negligence.
6. Automobiles. — Instruction that if defendant motorist was traveling at time of collision, or immediately preceding it, more than 40 miles per hour, he was negligent, being peremptory, held more favorable to plaintiff than was authorized .
7. Appeal and Error. — Any error in court's instruction which followed instruction offered by plaintiff could not be taken advantage of by plaintiff on appeal.
8. Automobiles. — Wife held liable for husband's negligence in driving automobile with her consent on mission as much for benefit of herself as it was for him.
9. Automobiles. — Automobile owner is not liable for negligence of employee using automobile for his personal affairs.
Appeal from Jefferson Circuit Court.
CHARLES W. MORRIS and FRANK A. GARLOVE for appellant.
O'NEAL & O'NEAL for appellees.
Affirming.
On October 4, 1930, the appellant and plaintiff below, Adele Challinor, owned an automobile, and on that day she and her husband and their children resided on the north side of the River Road in Jefferson county, located some ten miles east from the city of Louisville. They were returning from the city to their home, the automobile being driven by appellant's husband, she occupying the front seat with him. After they turned to the left in crossing the road to enter their premises, an automobile belonging to the defendant Woodford F. Axton, which was being driven by his codefendant, Wardell Mason, collided with the left side of plaintiff's automobile near its rear and damaged it and also bruised, injured, and shocked plaintiff; but no bones were broken and her injuries do not appear to be serious. She later filed this ordinary action in the Jefferson circuit court against the two defendants, setting out the fact of the collision, and alleging that it was produced by the negligence of Mason in operating the colliding car, and she sought a judgment against them for the amount of her damages which she laid at $5,350.
The answer denied the negligence charged in the petition, and in a second paragraph pleaded contributory negligence of plaintiff and her husband as the driver of her car. Following pleadings made the issues and upon trial, the jury under the instructions submitted to it by the court returned a verdict in favor of defendants, followed by a judgment dismissing plaintiff's petition. Her motion for a new trial was overruled, and she prosecutes this appeal.
The first three grounds contained in the motion for a new trial are thus phrased: The remaining two complain of the instructions given by the court and refusing those offered by plaintiff. Those five grounds constitute the entire objections to the trial made in plaintiff's motion for a new one.
It will be perceived that all of grounds 1 and 3, and that part of 2 which complained of the verdict as being "contrary to law," are couched in general terms with no specification of any concrete or particular error, and under an unbroken line of our opinions are insufficient to authorize us or the court below to consider or to disturb the verdict for any alleged error, though valid, that may be argued as embraced in such general language. In the case of Bunt's Adm'r v. Chilten, 10 Ky. Op. 404, this court had under consideration the sufficiency of a motion for a new trial complaining of "irregularity in the proceedings of the court and in the prevailing party, by which the plaintiff was prevented from having a fair trial," and it was held that the language was too general and that no specific ground not elsewehere set out in the motion could be considered by the court.
In the case of L. & N.R. Co. v. McCoy, 81 Ky. 403, 5 Ky. Law Rep. 397, one of the grounds relied on in the motion for a new trial was "error of law occurring at the trial." The court held it insufficient because stated in terms too general, and that the particular and specific error relied on must be pointed out with reasonable certainty. In the case of C. & N.R. Co. v. Harlan, 12 Ky. Law Rep. 506, the complaints in the motion for a new trial were "that the verdict was contrary to law," and "errors of law occurring at the trial," and we held them insufficient because not sufficiently specific. To the same effect are the cases of Williams & Co. v. Case Plow Works, 13 Ky. Law Rep. 140; Home Insurance Company v. Brownlee, 13 Ky. Law Rep. 173; Dietz v. Barnard (Ky.) 107 S.W. 766, 32 Ky. Law Rep. 1130; American Credit Indemnity Co. of New York v. National Clothing Company (Ky) 122 S.W. 840 (not elsewhere reported); and Downs & Bro. v. Firemen's Insurance Company of Newark, N.J. 206 Ky. 316, 267 S.W. 153. See, also, a great number of others on pages 773 to and including 776 of Edelen's Pleading and Practice, and also cases cited under key number 302, page 459, of volume II, West's Kentucky Digest.
We have cited a number of earlier cases upon the question under consideration to show the undeviating course of this court in its construction of the provisions of section 340 of the Civil Code of Practice containing the grounds for which a new trial may be granted and the application of them in the practice, since every case following the rendition of those cited has adhered to the rulings therein made without the slightest departure. Therefore, none of the grounds argued in brief of counsel for plaintiff, outside of those embraced in grounds 4 and 5 and the insufficiency of the evidence to support the verdict, as contained in ground 2, can be considered by us, since they are not properly presented by the motion and grounds for a new trial. We will, therefore, direct the discussion to (a), the alleged error of insufficiency of the evidence to support the verdict, and (b) error in giving and refusing instructions.
(a) Plaintiff was the only eyewitness who testified in her behalf. She made out a case that would authorize a finding of negligence on the part of the defendant Mason, in operating his automobile as it approached hers and in attempting to pass it. She likewise stated that her husband extended his left arm so as to indicate his intention and purpose to turn to the left in order to enter upon the premises of their joint home. One or two of her neighbors who did not witness the collision, but who heard the crash, testified that they heard the "roar" of defendant's automobile some thousand feet or more beyond the point of collision, and one of them (over the objections of defendant) testified that she judged from the noise of the roar that it was traveling some 50 or 60 miles per hour: but, clearly, that evidence was incompetent for two reasons: First, because of the distance from the scene, and, second, the inherent impossibility of the accuracy of the conclusion of the witness from the premise on which it was based. But, however that may be, the testimony for plaintiff bearing upon the manner of the happening of the accident was practically confined to that which we have stated; while the defendant Mason, his wife, and his adult sister-in-law, both of whom were in the automobile at the...
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Angel v. McClean
...at which time he regained dominion over the car, in that he was present and had the legal right to control its operation. In Challinor v. Axton, 246 Ky. 76, 54 S. W.2d 600, the facts were that the was driving his wife and children home from town, in the wife's car when the accident occurred......