Diamond Taxicab Co. v. McDaniel

• Decision Date: 19 March 1935
• Citation: 258 Ky. 478,80 S.W.2d 562
• Parties: DIAMOND TAXICAB CO. v. McDANIEL. SAME v. BENEDICT.
• Court: Kentucky Court of Appeals

80 S.W.2d 562

258 Ky. 478

DIAMOND TAXICAB CO. v. McDANIEL.

SAME v. BENEDICT.

Court of Appeals of Kentucky

March 19, 1935

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Actions by Mollie McDaniel and by Emma Benedict against the Diamond Taxicab Company and another. Judgments for plaintiffs, and named defendant appeals.

Reversed.

Woodward Hamilton & Hobson, of Louisville, for appellant.

Parmalee & Shaw and B.O. Kearney, all of Louisville, for appellees.

RATLIFF Justice.

On May 13, 1993, about 11 o'clock at night, appellees were crossing Broadway street in the city of Louisville and were struck and badly injured by a taxicab of the Diamond Taxicab Company, being driven by Robert Gathof.

Appellees filed their separate actions against the taxicab company and Gathof to recover for their injuries. The trial resulted in verdict and judgment in favor of appellee McDaniel, for $1,251.50, and for appellee Benedict, $1,150, and from those judgments this appeal is prosecuted.

The two cases were tried together before the same jury, and the appeals are prosecuted as one, and both cases will be disposed of by one opinion.

The only grounds of reversal urged by appellants are that instruction No. 1 was erroneous in two respects: (1) In submitting to the jury other acts of negligence of appellant Gathof than that alleged in the petition; and (2) in limiting absolutely the speed of the taxicab to 20 miles an hour.

1. The allegations of negligence set out in the petition are that the defendant Robert Gathof was driving east on Broadway "at a rapid rate of speed and with gross negligence and carelessness ran into and upon plaintiff and knocking her to the street," etc. It is insisted for appellants that the above language stated a specific act of negligence (rapid rate of speed), but not general negligence, and that the instruction given by the court should have been confined to the rate of speed.

The general rule is that, where negligence is alleged in general terms, any specific act of negligence may be proven and relied upon for recovery; but, where the acts which constitute the negligence relied upon are specifically set out in the petition, the party will be restricted in its proof and by the instructions to the specific act. This rule is conceded by appellees.

The question for determination is whether the allegation of negligence set out in the petition in the language above indicated constitute general negligence or specific acts of negligence. The petition alleges that Gathof was driving "at a rapid rate of speed," and this allegation is immediately followed by the further allegation, "and with gross negligence and carelessness ran into plaintiff," etc. The rate of speed was not specified nor alleged to be unlawful, nor to have been greater than was reasonable and proper, considering the condition of the highway and traffic, etc. The statute (Ky. St. Supp. 1933, § 2739g-51) does not fix any rate of speed as conclusive of negligence, but certain rates of speed may be considered prima facie evidence of negligence, depending upon the traffic, condition of the roads, etc.

In Hart v. Roth, 186 Ky. 535, 217 S.W. 893, 895, Roth charged in her petition that Hart negligently drove her automobile around from the rear of a standing street car where passengers were getting on and off of it and negligently failed to stop her automobile while the street car was receiving and discharging passengers at the intersection, and negligently drove the automobile around from the rear of the street car and between it and the curbing upon the left side of the street car and upon the wrong side of the street and over the crossing," and at a rapid rate of speed and without giving any warning of its approach." It was contended that the negligence complained of consisted alone in driving the automobile at a rapid rate of speed and failing to give any warning of its approach, and not upon the negligence arising from the failure of the chauffeur to stop the automobile while the street car was standing, receiving and discharging passengers at the intersection. In disposing of that question this court said: "We do not, however, construe the averments in the petition with reference to the negligence of the appellant as...