Consolidated Coach Corporation v. Saunders
| Decision Date | 22 March 1929 |
| Citation | 17 S.W.2d 233,229 Ky. 284 |
| Parties | CONSOLIDATED COACH CORPORATION v. SAUNDERS. |
| Court | Kentucky Court of Appeals |
Rehearing Denied June 7, 1929.
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.
Action by Sallie Saunders against the Consolidated Coach Corporation. Judgment for plaintiff, and defendant appeals. Affirmed.
Keenon & Huguelet and R. P. Moloney, all of Lexington, and Gardner K. Byers, of Louisville, for appellant.
Beckham Overstreet, of Louisville, for appellee.
The appellee and plaintiff below, Sallie Saunders, on April 16 1927, was traveling in an automobile on the highway between Louisville and Lexington, Ky. and in the late afternoon a bus of appellant and defendant, Consolidated Coach Corporation collided with the rear of the automobile in which she was riding, resulting in the infliction of personal injuries to her, to recover damages for which she filed this action in the Jefferson circuit court. Upon a trial before a jury there was a verdict in her favor for $2,000, to reverse which defendant prosecutes this appeal.
The vehicle in which plaintiff was riding at the time was going east and being followed by the bus. It was owned and driven at the time by Luther Mahan, and the occupants were the owner, plaintiff, Mrs. Mahan, and Mr. Saunders; the two ladies occupying the rear seat, and plaintiff sitting on the left side; the two gentlemen were on the front seat. The automobile party were intending to spend the week-end with Mr. and Mrs. Williams, who resided on Limestone street in Lexington; the latter being the daughter of Mr. and Mrs. Saunders. At about 6:15 p. m., and when on the highway near 2 1/2 miles west of Lexington, a Ford machine traveling in the same direction was overtaken by Mr. Mahan and the defendant's bus was just behind him. According to plaintiff's testimony and that of a number of her witnesses, Mr. Mahan, who as we have said was driving the automobile, made a slight turn of the front wheels of his automobile to the left with the view of passing the Ford automobile that was in front of him; but he had scarcely done so when he discovered the approach from the opposite direction of another automobile, and he immediately turned the front wheels of his vehicle to the right and thereby abandoned his immediate purpose of passing the Ford. About the time he made the turn to regain his original position behind the Ford in front of him, defendant's bus, which we have said was following the Mahan automobile in which plaintiff was riding, collided with its rear and lifted its hind wheels off the ground and pushed it for a distance of from 50 to 75 feet, when it was cast to the extreme right of the highway, and the bus continued forward for a distance of 100 or more feet, when it stopped. The collision broke certain parts of the Mahan automobile and considerably jarred and shook up the travelers therein, injuring plaintiff severely and permanently in her left limb near to or in the ankle, by breaking some of the bones and spraining her right ankle as well as wrenching her back, from all of which she greatly suffered, and her left limb, which, according to the physician witnesses, is 50 per cent. permanently impaired.
The answer denied the negligence averred in the petition and interposed a plea of contributory negligence, which was denied by reply, and on this appeal practically all of the Code grounds for a new trial are discussed in defendant's most lengthy brief; but we think the grounds urged for reversal may be classified as: (1) Refusal of the court to sustain defendant's motion for a peremptory instruction offered at the close of plaintiff's testimony and renewed at the close of all the testimony; (2) insufficiency of the evidence to sustain the verdict; (3) the admission of incompetent evidence offered by plaintiff over defendant's objections and exceptions; (4) refusal of the court to sustain defendant's motion during the progress of the trial to discharge the jury and continue the cause; and (5) error in giving and refusing instructions-each of which we will briefly discuss and determine.
1. Grounds 1 and 2 are to be determined from all the evidence introduced and will be disposed of together. They are attempted to be sustained upon the theory that the entire testimony in the case failed to produce a scintilla of proof to sustain the charge of negligence alleged against defendant, and in argument in support thereof defendant's counsel discusses only the testimony of defendant's witnesses, some of whom testified that Mr. Mahan, in endeavoring to pass the Ford in front of him, got his car on the left side of and even with it, and with his car to the left of the center of the highway, at which time he discovered the approaching automobile going in the opposite direction and suddenly concluded to stop his automobile and resume his position behind the Ford that he was attempting to pass; that in doing so he gave no signal with the horn or otherwise of his purpose and intention; and that he checked the speed of his automobile and turned it in front of defendant's bus, which was still pursuing its course on the right side of the highway. In other words, it is argued that in making that maneuver Mahan negligently put his machine in front of the approaching bus, which was the sole cause of the collision. But even that argument, if true, did not necessarily exculpate defendant under the statutory and common law requiring careful operation of such vehicles on the highway, including regulation of speed, under all the circumstances, so as to avoid collisions; for if Mahan was guilty of the conduct so attributed to him, it was at least a question for the jury to determine whether the driver of the bus, in regulating its speed and in approaching so close that it could not avoid the collision, was or not negligent. The testimony was at least equal, if not preponderating, that the collision occurred in the manner described by plaintiff and her witnesses, and which, if true, clearly established negligence on the part of the operator of the bus. So that, the court properly overruled defendant's motion for a peremptory instruction in its favor, and likewise properly overruled ground 2.
3. In discussing ground 3, learned counsel for defendant points out a number of insignificant and immaterial matters, which, if erroneous, could not possibly be considered as prejudicial illustrations of which are: That plaintiff's counsel asked one of his witnesses: The objection made to that question is that it was leading, but we do not think so. The information sought to be elicited by the question could scarcely otherwise be inquired about. If, however, it were not so, then the error is too trivial to be considered as prejudicially material. Another item of testimony objected to under this ground was the statement immediately made by Mrs. Saunders that: "My back hurts so bad I can hardly stand up." In the first place that statement might properly be considered as a part of the res gestæ; but, if not so, the circumstance under which it was made was that defendant's driver, after stopping the bus and forthwith returning to the Mahan automobile, inquired if anybody was hurt, and the answer was the above one made by plaintiff. Independently, however, of any such consideration, the remark bore only on the extent of plaintiff's injuries, and they were otherwise uncontradictedly proven; so that, if entirely erroneous and inadmissible, the statement...
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