Droppelman v. Willingham

• Decision Date: 16 March 1943
• Citation: 293 Ky. 614,169 S.W.2d 811
• Parties: DROPPELMAN v. WILLINGHAM.
• Court: Kentucky Court of Appeals

169 S.W.2d 811

293 Ky. 614

DROPPELMAN v. WILLINGHAM.

Court of Appeals of Kentucky

March 16, 1943

Appeal form Circuit Court, Jefferson County, Common Pleas Branch Third Division; William H. Field, Judge.

Personal injury action by Beverly Willingham against L. G. Droppelman. Judgment for plaintiff, and defendant appeals.

Affirmed.

Edward J. Hogan and Edwin O. Davis, both of Louisville, for appellant.

Woodward Dawson & Hobson and Charles Leibson, all of Louisville, for appellee.

REES Justice.

Appellee Mrs. Beverly Willingham, was severely injured in an accident on February 28, 1941, while riding as a guest in an automobile owned by the appellant, L. G. Droppelman. Mrs. Willingham sued Droppelman for damages in the sum of $9,750, and the first trial resulted in a verdict for the plaintiff for $484.73. The verdict was set aside on the ground that it was inadequate, and on the second trial there was a verdict for the plaintiff for $2,234.75. After the second verdict and judgment the defendant moved the court to reinstate the first verdict, and the motion was overruled.

Mrs. Willingham lived in an outlying residential section of Louisville, and on the day of the accident had driven into town and parked her automobile in a parking lot behind Loew's Theatre. Accompanied by a friend, Mrs. Fetter, she went into a restaurant where she saw Mr. Droppelman and Miss Mary Bess Hunt seated at a table. She knew Mr. Droppelman, but was not acquainted with Miss Hunt. Mr. Droppelman invited Mrs. Willingham and Mrs. Fetter to sit at his table, and later invited them to ride to Buechel with him and Miss Hunt and Mrs. Willingham accepted the invitation. He had promised to take Miss Hunt to her home in Buechel, which is located on the Bardstown road a few miles from Louisville. They walked across the street to the Francis Garage, got in Mr. Droppelman's car, a new Buick sedan, and with Mr. Droppelman at the wheel started to Buechel. After traveling a few squares Miss Hunt asked permission to drive, and Mr. Droppelman moved over and Miss Hunt took the wheel. She proceeded out the Newberg road and as she turned to the left to enter a street or road which intersected the Bardstown road, the automobile left the road and struck a tree. The car was wrecked, and the three occupants were seriously injured. At the trial, more than a year after the accident, Miss Hunt, because of her injuries, was unable to be present. It was dark at the time of the accident and the car was traveling at a speed of 45 or 50 miles an hour. The only witnesses who testified as to how the accident occurred were the appellee and the appellant. The appellee testified that the car was traveling at a speed of 45 or 50 miles an hour as it approached the intersection where the accident occurred, and, when asked to state what happened at the scene of the accident, she said:

"Well, when we came to this curve she did not slow down for it and got off the road and in getting back on the road she lost control of the car and it started skidding and we crashed into a tree."

Appellant testified as follows:

"Q. Was it light or dark when the accident happened? A. It was dark.

"Q. As you traveled out the Newberg Road and approached the scene of the accident tell the jury approximately the rate of speed that Miss Hunt was driving that car? A. About forty five miles an hour.

"Q. Was there anything in her operation of the car from the time she started driving it until just the moment before the accident happened that indicated any uneasiness or trouble, or anxiety of any kind on your part? A. There was nothing.

"Q. Tell the jury just how the accident happened? A. All I remember is that the car started swerving and the next thing I knew the County policeman was leaning over me with a search-light shining in my face. I was lying in a field.

"Q. So far as you know there was no reason or excuse of any kind for the accident happening? A. None whatsoever.

"Q. I believe your car was approximately a new car? A. That is right.

"Q. How old was it? A. About three months.

"Q. And it was in perfect mechanical condition? A. It was."

The court instructed the jury that Mrs. Willingham and Miss Hunt were guests in Droppelman's car, and that Droppelman made Miss Hunt his agent in the operation of the car when he surrendered the wheel to her. The court then directed the jury to find for the plaintiff, and gave an instruction on the measure of damages.

Appellant insists that the court erred in overruling his motion for a peremptory instruction to find for him and in directing a verdict for the appellee. A negative answer to the second contention automatically disposes of the first. There is much discussion of the rule of res ipsa loquitur, and it is argued that in no case where the rule is applicable is a directed verdict for the plaintiff proper. Ordinarily where the circumstances necessary to the application of the doctrine of res ipsa loquitur stand alone without any independent evidence, direct or circumstantial, of negligence on the part of the defendant, the case is one for the jury, as the phrase means that the facts of the occurrence warrant the inference of negligence and it is for the jury to say, in view of all the facts in the case, whether or not negligence shall be inferred. Frank Fehr Brewing Company v. Corley, 265 Ky. 308, 96 S.W.2d 860; Paducah Traction Company v. Baker, 130 Ky. 360, 113 S.W. 449, 18 L.R.A.,N.S., 1185; Louisville & N. R. Co. v. Davis, 115 Ky. 270, 71 S.W. 658; Glowacki v. Northwestern O. Ry. & P. Co., 116 Ohio St. 451, 157 N.E. 21, 53 A.L.R. 1486, and annotation in 53 A.L.R. 1494; Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, Ann.Cas. 1914D, 905. In the present case there was evidence of negligence in addition to the mere facts of the occurrence from which an inference of negligence might be drawn, and, consequently, it was not necessary to invoke the doctrine of res ipsa loquitur. Partin's Adm'r v. Black Mountain Corporation, 248 Ky. 32, 58 S.W.2d 234, 93 A.L.R. 606; 38 Am.Jur., Negligence, section 297. There was direct and positive evidence that the automobile was operated in a negligent manner, and that the negligence of the operator was the sole cause of the accident. The evidence fails to disclose the width of the streets and the angle of the curve at the intersection where the accident occurred, but it does disclose that the turn into the intersecting road was made at a high rate of speed, that the car left the road and the driver, in attempting to get back on the road, lost control of the car and it skidded and crashed into a tree. Appellant testified that the car was new and in perfect mechanical condition. This is not a case where an unexplained accident may be attributable to one of several causes for some of which the defendant is not responsible. The facts and circumstances attending the accident appear in evidence and are susceptible of but one inference-- negligence on the part of the driver. If the question of negligence had been submitted to the jury and they had returned a verdict for the defendant, the verdict would have been without any evidence to support it and should have been set aside. Such a verdict would have been based on mere surmise and conjecture."

"Where the facts of a case are undisputed, and but one legitimate inference can be drawn from them, the court, and not the jury, should determine their effect." Wood-Heck v Roll, 183 Ky. 128, 208 S.W. 768; Black Mountain Corporation v. Partin's Adm'r, 243 Ky. 791, 49 S.W.2d 1014; Hopper v. Barren Fork Coal Company, 263 Ky. 446, 92 S.W.2d 776; Northwestern Mutual Life Insurance Company v. Yoe's Ex'r, 287 Ky. 590, 154 S.W.2d 559. Directed verdicts for plaintiffs in negligence cases are rare, but when the undisputed evidence points unerringly to negligence of the defendant as the cause of the accident, a direct verdict for the plaintiff is proper. In Ralston v. Dossey, 289 Ky. 40, 157 S.W.2d 739, 741, a guest in an automobile driven by the 16-year old son of the owner was injured in an accident. There, as here,...