Cunningham v. Sublett's Adm'r

• Decision Date: 20 January 1948
• Parties: CUNNINGHAM et al. v. SUBLETT'S ADM'R.
• Court: Kentucky Court of Appeals

208 S.W.2d 509

306 Ky. 701

CUNNINGHAM et al. v. SUBLETT'S ADM'R.

Court of Appeals of Kentucky

January 20, 1948

Appeal from Circuit Court, Hickman County; E. J. Stahr, Judge.

Action by the administrator of Henry D. Sublett, deceased, against W. M. Cunningham and others to recover for death of deceased who was run over and killed by defendant's truck. From a judgment in favor of plaintiff, defendants appeal.

Judgment affirmed.

Terrell & Schultzman, of Paducah, and M. C Anderson, of Wickliffe, for appellants.

F. B Martin, of Mayfield, and Edmond Wroe, of Clinton, for appellee.

SILER Justice.

The administrator of Henry D. Sublett, deceased, appellee, having recovered damages for his decedent's death in the amount of $7,000 against W. M. Cunningham and others, appellants the latter now brings us this appeal.

As grounds for reversing the judgment, it is contended (1) that appellants were entitled to a directed verdict and (2) that the instructions to the jury were prejudicially erroneous.

Henry D. Sublett, a little toddling boy about 16 months old, was run over and killed beneath the truck of appellants, who are gasoline distributors, in the afternoon of September 27, 1944, immediately after the truck had delivered to the Sublett home 50 gallons of gasoline which was transferred into a drum located on the premises. The only testifying eyewitness to this tragic occurrence was the truck driver himself, Orville Gunter, whose evidence was introduced by appellee as the sole support of his contention that appellants should be answerable in damages because of negligence on the part of Gunter upon this occasion. Gunter testified, in substance, that he drove the truck into a field or large lot at the Sublett place and that he pulled up beside a gasoline drum to deliver the gasoline previously ordered by Sublett; that the drum was located next to a fence within the large lot and which fence enclosed the Sublett home within a smaller lot; that the drum was also located about 40 feet south of a gate connecting the larger and smaller lots; that he was engaged in transferring gasoline from appellants' truck to Sublett's drum when two of the Sublett children, a little 5 year old girl and the little 16 month old boy, Henry, came from the porch of the Sublett home down through the gate and over to the motionless truck; that he talked with the girl and then turned and looked toward the rear of the truck just as the little boy turned away from the rear of the truck and headed toward the gate and in the direction of the Sublett home; that he last saw the little boy alive as he stood at the gate, which was about 20 feet from the rear of the truck; that he finished the job of transferring gasoline to the drum, then went to the rear of the truck and put his transferring bucket in its compartment, then returned to the side of the truck next to the drum and there closed up the dispensing apparatus, then went to the rear of the truck a second time, going clear around it on the second trip in order to enter the driver's seat at the left side; that he sat in the driver's seat and wrote out a sales ticket and gave it to the little girl as she stood near the cab of the truck; that he then started the truck and turned it in a leftward circle in preparation of leaving the larger lot of the Sublett premises and returning to the highway; that he left the truck wheels bounce on something, which he then investigated and found was the little boy whose life had been crushed out beneath the rear wheels of the truck; that the little boy had not been seen at either time when Gunter was at the rear of the truck just before he got in the driver's seat and prepared to drive away.

Appellants contend that they were entitled to a directed verdict on the basis of the above testimony, because the appellee, they say therein produced no proof to show that Gunter, appellants' truck driver, was negligent on this occasion. We find ourselves unable to agree. Under ordinary conditions of dealing with adult persons, Gunter would not have been careless at all under the circumstances of this case. But destiny, on this occasion, placed in his hands temporary responsibility for the safety of a little child, which was not a trespasser and which was not capable of contributory negligence. Had little Henry been a grown-up or even a child of mature years of sound discretion, then Gunter need not have considered the possibility that he might be playing around under the truck. However, all reasonably prudent persons and prudently reasoning...