Consolidated Coach Corp. v. Hopkins' Adm'R.

• Decision Date: 21 April 1931
• Citation: 238 Ky. 136
• Parties: Consolidated Coach Corporation v. Hopkins' Administrator.
• Court: United States State Supreme Court — District of Kentucky

238 Ky. 136

Consolidated Coach Corporation v. Hopkins' Administrator.

Court of Appeals of Kentucky.

Decided January 30, 1931.

As Modified on Denial of Rehearing, April 21, 1931.

1. Automobiles. — Where automobile suddenly entered slippery highway from intersecting lane, view of which was obstructed, bus driver was not negligent if he failed to choose wisest course.

2. Automobiles. — Evidence that bus driver failed to sound horn when rounding curve prior to intersection collision was inadmissible, where curves did not obstruct view (Ky. Stats., sec. 2739g-47).

3. Automobiles. — Driver need only have bus under such control that it can be stopped with reasonable quickness.

4. Automobiles. — No issue was made for jury of negligence of bus driver with respect to speed, warning, control, or after-discovered peril, in action for injuries in intersection collision.

5. Evidence. — Where witnesses testify a thing did occur and they heard it, and other witnesses of equal credibility testify to contrary, courts are inclined to give greater weight to testimony of witnesses first named.

6. Automobiles. — Evidence that speedometer was not working and that bus had no clock held inadmissible in action for injuries.

7. Automobiles. — Bus driver was required to give warning of approach to intersecting lane only if jury should find warning necessary under circumstances (Ky. Stats., sec. 2739g-28).

8. Negligence. — Negligence of driver of automobile cannot be imputed to guest and will not prevent guest's recovery against another unless driver's negligence was sole cause of collision.

9. Trial. — Introduction of evidence that bus was equipped with governor which limited speed did not permit rebuttal evidence that other busses on road had made greater speed, where there was no showing that other busses were of same make or equipment as to governors.

10. Witnesses. — Evidence that other busses of like make and equipment could go over 38 miles an hour was admissible in automobile collision case solely to affect credibility of bus company's witnesses who testified bus was equipped with governor which limited speed.

11. Trial. — Court should admonish jury that evidence admitted as to speed of busses like one in question in accident case should be limited to question of credibility of witnesses.

12. Trial. — Court, in absence of evidence as to effect of governors on similar busses, should in accident case limit evidence about speed to bus in question.

Appeal from Simpson Circuit Court.

THOMAS & BELL, JOHN S. MILLIKEN, and R.W. KEENON for appellant.

G.D. MILLIKEN and C.E. EVANS for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

The appellant, hereinafter called the bus company, seeks by this appeal to reverse a judgment for $6,000 recovered against it by Christine Hopkins' administrator, for the alleged negligent killing of her. In the latter part of the afternoon of October 17, 1928, Miss Hopkins and three others were returning to her home from some point out the Vance's Mill road, hereinafter called the lane, to which they had gone. This lane leads from the west into the Bowling Green and Franklin intercounty seat highway, hereinafter called the highway, at a point 852 feet south of a place sometimes referred to as "Salmons" and sometimes as "Cartwright's Store." In order to avoid confusion, we shall refer to it as Cartwright's Store.

As the Ford sedan in which Miss Hopkins and her companions were traveling came into this highway from the west and turned or started to turn north towards Bowling Green, it collided with a bus owned and operated by the bus company then traveling south on that highway, enroute from Louisville, Ky., to Nashville, Tenn., and Miss Hopkins and the driver of the Ford were killed. For her death her administrator sued the bus company and the administrator of Sherman Prewitt, the driver of the Ford. When the case was called for trial, the plaintiff dismissed without prejudice his action against the administrator of Prewitt.

West of this highway and north of this lane there is a field belonging to Joe McFadden. This field is considerably higher than both the lane and the highway, and much upgrown with weeds and sumac bushes, so that it was not possible for those in the Ford to see the bus or for those in the bus to see the Ford before it came out onto the highway.

As the Ford came out of the lane, the driver of the bus, misjudging the speed of the Ford and hoping to pass in front of it, turned to the left, and the collision took place a little to the left or east of the center of the highway; a fair deduction being about 3 feet from the center line. Miss Corinne Hopkins, one of the surviving occupants of the Ford, testified they had got on their side of the highway; that is, on the east side. The highway is 60 feet wide, and thus it appears the Ford had traveled about 33 feet after it entered the highway before it was struck. Only 18 feet of the center of this 60-foot highway is improved, so this Ford had traversed 21 feet of the shoulder or side of the highway and 12 feet of the paved or improved portion, a total of 33 feet, when this happened.

Various estimates are made by the witnesses of the distance of the bus from the Ford when the Ford came out of the lane and into view. The average of these estimates is 22 feet. Thus, while the bus was traveling 22 feet, the Ford traveled 33.

The average of the various estimates of the speed of the bus is 28 1/2 miles per hour, and a simple calculation will show the speed of the Ford was nearly 43 miles per hour. No witness attempted to estimate the speed of the Ford, but these figures are conclusive. There are many statements of the witnesses to same effect. One witness in his testimony said, "A Ford shot across the road;" another, "A Ford popped out in front of us," another, "This car darted out into the highway;" another, "there was a car, seemed to shoot right out in front;" and another said, "There was a Ford car darted out." A simple calculation will show that when this collision occurred this bus was moving about 41 1/2 feet per second, the Ford over 62 feet per second, and this collision occurred in about two-thirds of a second after the Ford came into view.

There is some intimation in the evidence and in the argument that, if the driver of the bus had turned to the right instead of turning to the left, he would have passed behind the Ford, and no one would have been injured, but, with only two-thirds of a second in which to act, the bus company is not responsible if he chose not the wisest course. Ky. Traction & Terminal Co. v. Roschi's Adm'r, 186...