Dix v. Gross
| Decision Date | 17 December 1937 |
| Citation | 271 Ky. 231,111 S.W.2d 673 |
| Parties | DIX v. GROSS. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Perry County.
Action by Coburn Gross against C. C. Dix, doing business under the firm name of Dix Taxi Company. Judgment for the plaintiff and the defendant appeals.
Reversed and remanded for a new trial.
W. E Faulkner and Faulkner & Faulkner, all of Hazard, for appellant.
F. J Eversole and C. A. Noble, both of Hazard, for appellee.
The appeal is from a $2,000 judgment for personal injuries.
The facts may be summarized as follows: There is a road leading from Hazard to the village of Lothair, in Perry county. Going toward Lothair the river is on the right below the road, and on the left is a cliff of stone. At the time of the accident, which occurred about 1:30 in the morning, Coburn Gross, S. P. Carmack, and Daisy Catron were passengers in a taxicab owned by appellant, C. C. Dix, and driven by Jesse Davis. The taxicab left the highway, fell over a steep rocky bank, and landed near the edge of the river. All the passengers and the driver were thrown out of the car and more or less injured. Gross says that after they had gotten a short distance from Hazard the taxi passed a coupé. Later on the coupé started to pass and struck the rear bumper, and Jesse Davis got off the concrete. He and the other passengers told Davis to stop. He had about 200 feet in which to stop after they "hollered" at him. According to Jesse Davis, "This other car hooked into my left fender; I was giving him all the road and did all I could to get back into the road." The other car was not more than 10 or 15 feet away when the taxi went over. The taxi did not run on as much as 200 feet before it stopped. Coburn Gross did not tell him to stop. The car also struck his left front fender. His right wheels were clear off the road. The other car was along side of him and he could not get back into the road. Where he went over you could not drive the car clear off the concrete for any distance. He just tried all the time to get back into the road, and did not think about his brakes. He did not think it would have done any good if he had applied his brakes. According to Rader Hammonds, Arnold Elkins, and two young women who were with them in a car parked on the roadside, the coupé hit the taxi and the taxi went over the hill.
It is at once apparent that there is no basis for the contention that the case should not have gone to the jury, or that the verdict is flagrantly against the evidence. Gross was entitled to recover if the accident was due to the concurrent negligence of Davis and the driver of the coupé. Only in the event that the negligence of the driver of the coupé was the sole cause of the accident was appellant not liable. McGraw v. Ayers, 248 Ky. 166, 58 S.W.2d 378.
Being engaged in the business of transporting passengers for hire, appellant was a common carrier, and therefore under the duty of exercising the highest degree of care to transport Gross in safety. Shelton Taxi Company v. Bowling, 244 Ky. 817, 51 S.W.2d 468. According to Gross, the coupé had passed on, and Davis had plenty of time in which to get back on the road and avoid the accident. Aside from this it may be doubted if Davis, according to his own evidence, exercised the highest degree of care to avoid the accident. One might conclude that he was negligent in not stopping, or applying his brakes.
While Gross was on the stand he was confronted by a long statement which was taken down by a stenographer shortly after the accident, but not signed by him. He admitted making certain portions of the statement, and it was proved by the stenographer and others present that he made the entire...
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