Cincinnati, N. & C. Ry. Co. v. Peluso

• Decision Date: 15 June 1956
• Citation: 293 S.W.2d 556
• Parties: THE CINCINNATI, NEWPORT & COVINGTON RAILWAY COMPANY, Appellant, v. John PELUSO, Sr., Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 556

293 S.W.2d 556

THE CINCINNATI, NEWPORT & COVINGTON RAILWAY COMPANY, Appellant, v. John PELUSO, Sr., Appellee.

Court of Appeals of Kentucky.

June 15, 1956.

Rehearing Denied Oct. 5, 1956.

Arthur J. Daly, Cincinnati, Ohio, Stephens L. Blakely, Blakely, Moore & Blakely, Covington, of counsel, for appellant.

Odis W. Bertelsman, Morris Weintraub, Newport, for appellee.

WADDILL, Commissioner.

Appellee, plaintiff below, received serious personal injuries in a collision between his panel truck and a bus operated by appellant's agent. There have been two trials of this case. In the first trial a verdict was returned for the defendant, however a motion for a new trial was sustained. The second trial resulted in an $18,383 verdict for plaintiff. Defendant's motion to set aside this verdict and judgment and reinstate the verdict and judgment rendered in the first trial was overruled as was his motion for a new trial. Defendant appeals from the action taken in each trial.

The trial court did not set out its reasons for granting the new trial, yet it appears the court believed that the instructions given were erroneous. In order to properly consider the instructions it is necessary to review the evidence of each party.

The collision occurred on a state highway bridge between Newport, Kentucky, and Cincinnati, Ohio, about 200 feet north of the bridge toll house. Appellant was proceeding south and appellee north. It was raining, making the wooden floor of the bridge slippery. Appellant's evidence is to the effect that as its bus approached the truck being driven by John Peluso, the truck appeared to strike the guard rail on the east side of the bridge at a point appoximately 30 feet from the bus, and skidded sideways directly into the bus. Appellant places Peluso's speed at 10 to 15 m. p. h., and the speed of the bus at 10 or 12 miles an hour immediately before the collision, however, the bus driver contends that the bus was completely stopped at the time of the impact and had never crossed the center line. Appellee's evidence was to the effect that the bus was traveling at a speed of 40 to 50 miles per hour, and that it crossed over the center line into appellee's lane striking his truck.

Instruction A-1 defined plaintiff's duties, closing with the words, '* * * and unless you believe from the evidence that * * * [plaintiff] was not exercising ordinary care for his own safety, you will find for the defendant * * *.' This instruction was obviously misleading. Appellant contends that the use of 'not' is such an obvious error that the jury could not have been misled. Nevertheless even omitting the word 'not' the instruction is erroneous, as it authorized a verdict for defendant if there was any failure whasoever on the part of plaintiff to exercise ordinary care. The instruction did not inform the jury that plaintiff's negligence must also have contributed in some way to the accident before he would be precluded from recovery. Bevis v. Vanceburg Telephone Co., 132 Ky. 385, 113 S.W. 811; Palmer Transfer Co., v. Paducah Railway and Light Co., 89 S.W. 515, 28 Ky.Law Rep. 473.

Instruction A-4 was a sudden emergency instruction. However, the theory of appellant's case was that the bus had been brought to a complete stop before the imnpact and had never crossed the center line. There is no indication that the bus driver was put to a rapid choice of alternative courses of action in order to avoid the accident, or that the action he did take may have been an unwise choice. In view of appellant's evidence, the giving of a sudden emergency instruction allowed the jury to speculate and adopt a theory of defense not supported by the evidence. Giving this instruction was therefore prejudicial error.

In view of the instructions given at the first trial, we conclude that the motion for a new trial was properly sustained.

When this case was called for trial the second time, appellant challenged the venire on the ground that 36 names were drawn from the wheel and over 20 were excused; that a supplemental list of 28 names was drawn of which more than 8 were excused. Appellant contends that because of this procedure he 'was unable to investigate the qualifications of said jurors and thus [his] right to challenge was interfered with and hampered to such degree that said right to challenge was impaired.'

We find no merit in appellant's contention that he is entitled to a list of the persons who are called and who will actually serve in order to investigate them. While the case of Cincinnati, N. & C. R. Co. v. Tenkotte's Ex'r, 305 Ky. 743, 205 S.W. 2d 503, appears to substantiate appellant's position, its value as precedent was nullified by the legislature in 1948. The Tenkotte case was based on KRS 29.130(2) as it appeared in the 1946 Kentucky Revised Statutes. It required that 'the names of all persons drawn as grand and petit jurors shall be publicly announced when drawn * * *.' However, at its 1948 session the General Assembly amended KRS 29.130,...