City of Providence v. Young

• Decision Date: 05 February 1929
• Citation: 227 Ky. 690
• Parties: City of Providence v. Young.
• Court: United States State Supreme Court — District of Kentucky

227 Ky. 690

City of Providence v. Young.

Court of Appeals of Kentucky.

Decided February 5, 1929.

1. Automobiles. — Driver of automobile, who continued along street though blinded by lights of other car, and who as a result thereof ran into concrete mixer in street, held not contributorily negligent as matter of law; the question of whether he exercised ordinary care in so doing being for jury.

2. Municipal Corporations. — City is required to exercise ordinary care to keep streets in a reasonably safe condition for public travel.

3. Municipal Corporations. — Traveler may assume that city has performed duty of exercising ordinary care to keep streets in reasonably safe condition for public travel, and that no danger will be encountered in proceeding, even though existing but vanishing condition may prevent a present view ahead, in the absence of notice or knowledge to the contrary.

4. Automobiles. — Driver, who cannot see road ahead because of temporary and vanishing condition, should proceed with due caution, keep upon the right side of the road, and, if necessary, sound his horn, or take such precaution as ordinary care in the circumstance might suggest or require.

5. Automobiles. — Where driver could not see road ahead because of temporary and vanishing conditions and the circumstances are so equivocal that reasonable men may disagree as to the particular duty or course of conduct demanded by the situation, the question of whether his failure to stop was contributory negligence is one for jury.

6. Damages. — Plaintiff suing for personal injury may recover for future suffering shown by the evidence to be reasonably probable.

7. Appeal and Error. — In action against city for injuries to occupant of automobile sustained in collision with concrete mixer in street, instruction imposing upon plaintiff duty to exercise ordinary care to discover and communicate to driver the presence of the obstruction held not prejudicial to city, being favorable to city, if subject to criticism.

8. Trial. — In action against city for injuries to occupant of automobile sustained in collision with concrete mixer in street, refusal of instruction precluding recovery if light from other car so blinded driver and occupants of plaintiff's car that proper lights on mixer could not have been seen held not error, in view of other instructions.

9. Damages. — $1,270 verdict for deep cut in forehead, requiring regular attendance of physician for five or six weeks and causing great pain and nervous condition which continued to time of trial, and for bruises to shoulders, arms, and hips, held not excessive.

10. Appeal and Error. — The Court of Appeals can reverse a judgment for excessiveness of damages only where damages are so grossly disproportionate to the injury as to strike the mind at first blush as the result of passion and prejudice on the part of the jury.

11. Appeal and Error. — In action against city for injuries sustained in collision of automobile with concrete mixer in street, remarks of plaintiff's attorney, in argument to jury, as to city's right of eminent domain and corresponding duties to public, held not prejudicial to city.

12. Trial. — The latitude allowed counsel in addressing the jury is great, and must not be used as a license to inflame or arouse passion or prejudice; but argument is proper if pertinent to law as given in instructions and consistent with facts proven or reasonable inferences therefrom.

Appeal from Webster Circuit Court.

RAYBURN & WITHERS and VERT C. FRASER for appellant.

DORSEY & DORSEY and C.L. WALKER for appellee.

OPINION OF THE COURT BY JUDGE WILLIS.

Affirming.

Eliza Young recovered a judgment against the city of Providence for personal injury, and the city appeals. She was riding in an automobile driven by her husband, which came in collision with a concrete mixer standing on the public street, resulting in the injuries. The errors relied upon for a reversal are: (1) That a peremptory instruction was not given; (2) that erroneous instructions were given; (3) that an offered instruction was refused; (4) that the verdict is excessive; and (5) that an attorney for the plaintiff was guilty of reprehensible conduct in his argument to the jury.

1. The argument for a peremptory instruction is based upon the testimony of Mrs. Young to the effect that she could not see the obstruction which caused the collision because of the driver being blinded by the lights of another car approaching as they came upon the concrete mixer, and because of the overhanging street light at the intersection, which created a condition like looking into the darkness from a lighted place. It is insisted that it constitutes contributory negligence as a matter of law for the driver of an automobile to continue upon the road when unable to see ahead. It must be remembered that it is the duty of a city to exercise ordinary care to keep its streets in a reasonably safe condition for public travel. Bickel Asphalt Paving Co. v. Yeager, 176 Ky. 712, 197 S.W. 417; City of Ashland v. Williams, 203 Ky. 300, 262 S.W. 273; De Garmo v. Vogt et al., 151 Ky. 847, 152 S. W. 969; City of Georgetown v. Groff, 136 Ky. 662, 124 S. W. 888. A traveler upon the street or highway has a right to assume, in the absence of notice or knowledge to the contrary, that the duty in that respect has been performed (45 C.J. p. 954, sec. 512), and that no danger will be encountered in proceeding, even though an existing but vanishing condition may prevent a present view ahead. We cannot say that the driver of a motor car must stop instantly when the road ahead is obscure, if the condition is but temporary, and no known danger lurks in the situation. He should, of course, proceed with due caution, keep upon the right side of the road (Stevens v. Potter 209 Ky. 705, 273 S.W. 470), and, if necessary, sound his horn or take such precautions as ordinary care in the circumstances might suggest or require (E.P. Barnes & Bro. v. Eastin, 190 Ky. 392, 227 S.W. 578; Dudley v. Town of Smithland, 174 Ky. 248, 192 S.W. 21). In the case of Pugh v. City of Catlettesburg et al., 214 Ky. 312, 283 S.W. 89, 46 A.L.R. 939, it was held to be lawful, under legislative authority, to construct and maintain piers in the street for the support of an overhead railroad track; and that such structure was not so inherently and palpably dangerous as to exceed the power of the Legislature or the city to authorize; and that the city could not be convicted of negligence in failing to place additional lights on the pier when it was adequately lighted by the regular street lights. It was further said, under the peculiar facts of that case, that the proximate cause of the collision with the pier appeared to be the excessive light from another automobile which had completely blinded the driver. In the present case the obstruction in the street was wholly unnecessary and unauthorized, and the evidence as to the proximate cause of the collision was such as to warrant the jury in attributing it to the obstruction, rather than to the lights of the other car. City of Ashland v. Williams, supra; Denker Transfer Co. v. Pugh, 162 Ky. 818, 173 S.W. 139.

There are cases from sister states that go so far as to hold that when the driver of a motor vehicle is unable to see ahead, he must stop or proceed at his...