Eads v. Stockdale

• Decision Date: 27 May 1949
• Citation: 310 Ky. 446,220 S.W.2d 971
• Parties: EADS et al. v. STOCKDALE.
• Court: Kentucky Court of Appeals

220 S.W.2d 971

310 Ky. 446

EADS et al. v. STOCKDALE.

Court of Appeals of Kentucky

May 27, 1949

Appeal from Circuit Court, Carroll County; Ward Yager, Judge.

Action by Earl Stockdale against Robert G. Eads and others, doing business as E. & W. Trucking Co., for damages arising out of a collision between plaintiff's automobile and defendants' truck. Judgment for plaintiff and defendants appeal.

Reversed.

Harlan Heilman, Carrollton, for appellants.

William G. Reed, Carrollton, for appellee.

CLAY Commissioner.

This is a motor vehicle collision case. The jury found a verdict in the amount of $2,765 for appellee, the operator of an automobile, against the owners and operator of a truck. Several grounds are urged for reversal.

Appellee was driving north on a graveled country road in Carroll County. Appellants' truck was following him. Appellee's home is on the right and his private garage is on the opposite side of the road. He made a left turn to go into the garage, holding out his hand before doing so. Appellants' truck struck his automobile about the left rear door as he made the turn.

Appellee testified that before making the turn he was in the center of the road and bearing to the left. The truck driver testified appellee slowed down in front of his house 'pulled over to the right and throwed his hand down out of the door'. The former apparently assumed appellee was going to stop on the right, and attempted to pass.

Appellants' first contention is that they were entitled to a peremptory instruction on the theory that the accident could not have happened as appellee testified. If there ever was a case for the jury, this is it. The testimony of the truck driver shows he was aware appellee was changing his course in the road and he admitted appellee put out his hand. Whether or not this signal was an adequate warning or was too late to be effective are pure questions of fact. Under the evidence, a jury would be justified in finding that either or both operators were negligent. Appellants were not entitled to a peremptory instruction.

What has been said above answers appellants' second contention that the verdict was not sustained by sufficient evidence.

A more serious question arises with respect to the deprival of appellants' right to peremptorily challenge a juror because of the falsity of his answer on voir dire examination. By affidavits accompanying an amended motion for a new trial, appellants alleged, and it is not denied, that during the preliminary examination of the jury panel appellants' attorney asked the following question 'Have any of you gentlemen ever been represented by Mr. Reed (appellee's attorney) in any legal matter?' The jury remained silent, thereby answering the question in the negative. It appears a member of the jury had been represented by appellee's attorney in a legal action filed in the Carroll Circuit Court. Appellants' attorney stated that he did not discover this fact until after the trial and his client was thereby deprived of his right to peremptorily challenge this juror.

We hesitate to reverse a case where actual prejudice is not shown. However, we believe this is the type of situation where the misconduct of the juror must be deemed to have been prejudicial.

The...