Couch's Adm'R v. Black
| Decision Date | 20 November 1945 |
| Citation | 301 Ky. 24 |
| Parties | Couch's Adm'r v. Black. |
| Court | United States State Supreme Court — District of Kentucky |
1. Appeal and Error. — If appellee was entitled to peremptory instruction, appellant was not prejudiced by error, if any, in instructions.
2. Negligence. — Under general allegation of negligence plaintiff may prove any act of negligence, but when plaintiff specifies negligence on which he relies, or when he makes a general allegation of negligence and follows it by an explanatory charge of specific acts, he will be confined, both as to evidence and to recovery, to specific acts alleged.
3. Trial. — A plaintiff is not entitled to go to jury if his evidence consists of statements of alleged facts which are inherently impossible and at variance with well-established physical laws, or if it is not of that relevant consequence to induce conviction.
4. Automobiles. — Evidence was insufficient for jury as to whether death of plaintiff's intestate was caused by negligence of defendant's bus driver in overtaking automobile in which intestate was occupant and then stopping in a short distance to take on passenger, thereby causing automobile driver to turn off road in effort to avoid striking bus.
Appeal from Clay Circuit Court.
M.C. Begley, T.T. Burchell and J.H. Asher for appellant.
A.T.W. Manning and R.W. Keenon for appellee.
Before Franklin P. Stivers, Judge.
Affirming.
On November 23, 1940, Manon Couch and his son John, Gus Woods, Pleasie Couch, Raymond Collins, and Charlie Woods were traveling, in a 1931 Chevrolet coupe, on Highway 80 between Hyden and Manchester, in the direction of the latter city. The coupe was owned and being driven by Manon Couch, and he and his son John, Gus Woods and Pleasie Couch were riding in the front seat, while Raymond Collins and Charlie Woods were riding in the rumble seat. At a point near the residence of Hal Bowling the coupe was overtaken and passed by one of appellee's busses, which continued its course for a short distance and then stopped to take on a passenger. Presently following the passing of the bus, the coupe passed from its right to its left side of the road, where it turned over and rolled down the side of the road's embankment and into a fence. The accident resulted in the death of John Couch and in personal injuries to the others. In May following, Manon Couch qualified as administrator of his son's estate and filed the present action for damages. At the same time he and Pleasie Couch and Raymond Collins severally sued to recover damages on account of their respective personal injuries. In May of 1941 there was a joint trial of all the cases, but the jury was unable to reach a verdict. In March of 1942 there was a separate trial of the administrator's case, and again the jury was unable to agree. Finally, in February of 1944, this, the administrator's, case was tried again, and this time the jury rendered a verdict in favor of the defendant. The administrator's motion and grounds for a new trial having been overruled, he has prosecuted this appeal.
The appellant relies upon and argues only one ground for reversal — erroneous instructions. The appellee counters with the argument that he was entitled to a peremptory, and that on this account it is immaterial that the instructions which were given may have been incorrect.
The soundness of the appellee's second contention is affirmed by innumerable decisions among them being Lilly v. Marcum, 214 Ky. 514, 283 S.W. 1059; Bentley v. Ballard & Herring, 162 Ky. 622, 172 S.W. 1079. A determination of the soundness of appellee's first contention requires an examination of his petition and of the evidence — both that of the appellant and that of the appellee.
The petition's allegation of negligence is not general, but specific, its fair import being that the bus was brought to a stop just as soon as it had succeeded in getting in front of the coupe. The exact language of the allegation is this: "* * * and the bus owned, managed and maintained by the defendant herein and operated by one of his agents, servants and employees, proceeding in the same direction on one of its regular runs between Hyden and Manchester, overtook the automobile in which...
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