Deshazer v. Cheatham

• Decision Date: 14 February 1930
• Parties: DESHAZER v. CHEATHAM.
• Court: Kentucky Court of Appeals

24 S.W.2d 936

233 Ky. 59

DESHAZER v. CHEATHAM.

Court of Appeals of Kentucky

February 14, 1930

Appeal from Circuit Court, Mercer County.

Action by Mrs. Amelia Deshazer against Mrs. Tracie Cheatham. Judgment for defendant, and plaintiff appeals. Affirmed.

E. H Gaither, of Harrodsburg, for appellant.

C. E Rankin, of Harrodsburg, for appellee.

GRIGSBY J.

The appellant, Mrs. Amelia Deshazer, instituted this action in the Mercer circuit court against Mrs. Tracie Cheatham appellee here, alleging that the appellee through gross carelessness and negligence in driving an automobile on the highway in Mercer county ran the same against plaintiff knocked her down, and greatly injured her, causing great physicial and mental suffering, to her damage in the sum of $500, and also sought to recover the sum of $50 for money alleged to have been spent to employ a physician to attend her in her injuries. The answer traversed the allegations of the petition and by a separate paragraph pleads contributory negligence on the part of plaintiff. The reply traversed the allegations of the answer as to the contributory negligence. On a trial of the case before a jury on the issues thus formed, a verdict for the defendant was returned by nine of the jurors signing same. Whereupon judgment was entered dismissing plaintiff's petition. Plaintiff's motion and grounds for a new trial having been overruled, plaintiff prosecutes this appeal. The grounds of reversal relied on by the plaintiff as set out in the motion and grounds for a new trial are:

(1) The court instructed the jury contrary to the law.

(2) The court refused to give instructions offered by the plaintiff which were legal and proper.

(3) The verdict of the jury is contrary to the law and the evidence.

There were only two witnesses to the occurrence--the plaintiff, who is the appellant here, and the defendant, who is the appellee. The appellant is 78 years old and left her residence on the east side of the Warwick turnpike to carry a bucket of milk to a neighbor, who lived on the west side of the pike some distance and to the south. The Warwick pike at this point is a narrow road, some 12 or 14 feet wide, rather rough, and not much traveled. The appellant testified in her own behalf, saying: That she came out on the pike, looked up and down the pike, did not see any one, walked across the pike to the west side, was walking along the west side going south, being about 1 or 2 feet from the west edge of the pike, had taken about 6 or 7 steps when appellee in attempting to pass her to the right the automobile fender struck appellant, knocking her down and injuring her. She testified that she heard no horn or other warning, and the first notice she had of the approach of the automobile was when she was struck. She further stated that appellee after striking her passed on down the road some distance, parked her car, came back and helped her up, offering to take appellant to appellee's own home and care for her until she recovered. Appellant preferred to go to her own home, and appellee took her to appellant's home and rendered such aid as she could and assisted in securing a physician.

On the other hand, appellee testifies that on the day of the accident she was traveling along the Warwick pike going south to Harrodsburg; that she was driving a Ford car which she had driven for five or six years and had driven cars even before that; that the car was equipped with a horn and brakes in good condition; that the pike was a scant 12 feet wide; that weeds about waist high had grown up along the edge of the pike; that the first time she saw appellant or had any notice of her presence on the pike was where the pike made a slight turn down a hill on a tolerably steep grade; that appellee cut off the gasoline and was coasting down this grade not over 10 miles an hour; when she was within 30 feet of appellant she saw appellant standing on the west side of the pike facing eastwardly. The instant appellee saw her appellee blew her horn and continued coasting down the east side of the pike, which was to her right; that appellant stood there until appellee came within about 12 feet of her, when appellant started across. The appellee did not think the appellant had any intention of crossing, but thought that she would come out 2 or 3 feet and wait for appellee to pass, and did not realize that she was attempting to cross the pike until appellant rushed to the center of the pike, and appellee then was within 4 or 5 feet of her. Appellee stated that she...