Eichstadt v. Underwood

• Decision Date: 06 May 1960
• Citation: 337 S.W.2d 684
• Court: United States State Supreme Court — District of Kentucky
• Parties: Edward EICHSTADT et al., Appellants, v. Laura UNDERWOOD, Appellee.

Page 684

337 S.W.2d 684

Edward EICHSTADT et al., Appellants, v. Laura UNDERWOOD, Appellee.

Court of Appeals of Kentucky.

May 6, 1960.

Woodward, Hobson & Fulton, Louisville, for appellants.

Harry L. Hargadon, Louisville, for appellee.

WADDILL, Commissioner.

Appellee, Laura Underwood, 66 years of age, was knocked down and injured while she was walking across Oakdale Avenue in the City of Louisville by an automobile being driven by Frances Eichstadt. Appellee brought this action to recover damages against the appellants, Frances Eichstadt and her husband, who owned the automobile, alleging that the accident was caused by the negligent operation of the car. The trial resulted in a verdict and judgment awarding appellee $9,000.

Several grounds are urged for reversal, the first of which is that appellee was guilty of contributory negligence as a matter of law.

The testimony introduced in behalf of appellee was that during the evening of April 22, 1954, at approximately 9:30 o'clock she got off a city bus at the intersection of Oakdale Avenue and Southern Parkway and walked to the south curb of Oakdale. When the traffic light at this intersection gave her the right to cross Oakdale, she looked for approaching traffic and seeing none, she attempted to cross to the north side of Oakdale. While she was crossing the street within the crosswalk provided for pedestrians, and as she neared the north side of Oakdale, she collided with appellants' automobile which had executed a left turn onto Oakdale. Appellee testified that she did not see the automobile driven by Mrs. Eichstadt as it was approaching her, nor did she see the car as it came into the crosswalk in front of her.

Appellant, Frances Eichstadt, testified that shortly before the accident occurred she was driving her automobile north on Southern Parkway. When she arrived at the intersection of Oakdale, she stopped her car and waited for the traffic light to change from red to green. When the light changed, she proceeded into the intersection and made a left turn onto Oakdale at a speed of about five miles an hour. She stated that she did not see appellee, but that she felt an impact upon the left rear side of her car immediately after it passed over the crosswalk. The reason she gave for not seeing appellee was that she was watching the traffic approaching her on Southern Parkway as she executed a lefthand turn onto Oakdale.

Four persons who had witnessed the occurrence of the accident testified that appellee walked into the left rear fender of appellants' automobile as it was passing in front of her. They differed, however, concerning whether appellee was within the crosswalk at the time.

Upon a motion for a directed verdict, based on the defense of contributory negligence, the burden is upon the defendant to establish to the satisfaction of the court that plaintiff was guilty of some specific act, or omission to act, which did not meet the standards of conduct exacted by law. 38 Am.Jur., Negligence, Section 181, pages 858, 859. Ordinarily, the question of whether the accident was caused solely by the defendant's negligence, or was contributed to by plaintiff, should be left to the jury to determine. Price v. T. P. Taylor & Co., Inc., 302 Ky. 736, 196 S.W.2d 312; Hewitt Lumber Co. v. Mills, 193 Ky. 443, 236 S.W. 949; Bush v. Grant, 61 S.W. 363, 22 Ky.Law Rep. 1766. It is only where one fair and reasonable conclusion can be drawn from the evidence that a directed verdict should be given. Neal v. Ashland-Ironton Transfer & Ferry Co., 201 Ky. 332, 256 S.W. 721.

Appellants insist that appellee did not exercise ordinary care in that she not only failed to observe approaching traffic while she proceeded across the street, but she also walked into appellants' automobile after it had cleared the crosswalk. Appellants rely upon the rule that a pedestrian may not proceed across a street oblivious to oncoming traffic, even though the pedestrian is in the crosswalk and the motorist has the duty to yield the right-of-way. Whittaker v. Thornberry, 306 Ky. 830, 209 S.W.2d 498; Pryor's Adm'r. v. Otter, 268 Ky. 602, 105 S.W.2d 564. We have, however, expressly held that it was not negligence per se for a pedestrian to fail to constantly look for approaching traffic while crossing a street at an established crossing if the pedestrian had looked for traffic before entering the street, and had thereafter observed due care and caution for his own safety. Layne v. Cottle, 286 Ky. 221, 150 S.W.2d 684; Weidner v. Otter, 171 Ky. 167, 188 S.W. 335. Since the uncontradicted testimony of appellee was that she looked for approaching traffic before entering the street, it cannot reasonably be held as a matter of law that appellee was negligent in failing to constantly look for approaching traffic.

While it does appear from the testimony introduced in behalf of appellants that appellee walked into appellants' automobile, we cannot fairly say that this testimony conclusively established contributory negligence on the part of appellee unless we ignore other pertinent facts and circumstances in the case. The physical facts and the inferences that reasonably may be drawn from the evidence give rise to a factual issue as to whether the automobile driven by appellant appeared so suddenly in front of, and so close to appellee that her previously initiated forward movement carried her involuntarily into the appellants' car. It is not unusual for a person, especially an elderly person, to be startled and momentarily confused when suddenly and without warning confronted at close quarters by a moving vehicle, a circumstance which the jury may properly consider in determining the question of contributory negligence.

Since it is our view that the evidence, when considered in its entirety, presented a jury issue concerning whether appellee was guilty of contributory negligence, we have concluded that the trial judge correctly overruled appellants' motion for a directed verdict and also their motion for judgment notwithstanding the verdict. Therefore, there is no basis for the further contention that the verdict is flagrantly against the weight of the evidence.

Appellants contend that certain instructions were erroneous and prejudicial. By instruction number 1(e) the court informed the jury that if they believed from the evidence that appellee was in the marked crosswalk at the time of the accident, it was the duty of Mrs. Eichstadt (the driver of appellants' car) to yield the right-of-way to Mrs. Underwood (appellee), and if necessary, in order to yield the right-of-way, to slow down or stop. Appellants insist that this instruction erroneously made it the duty of the driver of appellants' car to yield the right-of-way to appellee.

The reciprocal rights and duties of an...