Farrar v. Hank

• Decision Date: 17 October 1924
• Citation: 205 Ky. 89
• Parties: Farrar, et al. v Hank.
• Court: Kentucky Court of Appeals

205 Ky. 89

Farrar, et al. v Hank.

Court of Appeals of Kentucky.

Decided October 17, 1924.

Appeal from McCracken Circuit Court.

C. C. GRASSHAM, W. A. PERRY, J. B. ALLENSWORTH and L. B. ALEXANDER for appellants.

WHEELER & HUGHES for appellee.

OPINION OF THE COURT BY JUDGE CLARKE — Affirming.

The appellants, Mrs. Susan Farrar, Mrs. Perna Dillingham, and Mrs. Ora Ramage, by separate actions, sought to recover of appellee Hank damages for their respective injuries sustained when the automobile in which they were riding, and which was owned and being drived by Mrs. Farrar, struck a bridge abutment and turned over, alleged to have been caused by the negligent and unlawful conduct of appellee in driving his car in the middle of the road and thereby forcing Mrs. Farrar into the ditch and against the abutment.

The answer in each case was a traverse and plea of contributory negligence, which was traversed of record. Thereupon the defendant moved that the actions be heard and tried together by a single jury, which was done, over appellants' objections and exceptions. The jury returned a verdict for defendant in each case, and the petitions were dismissed.

The grounds urged for reversals are, that the court erred in trying the cases together, and in instructing the jury.

As is agreed, the rule of practice involved in the first complaint is well settled, and is thus stated in Benge's Admr. v. Fouts, 163 Ky. 796, 174 S. W. 515:

"Ordinarily, where there are several actions brought by different plaintiffs against one defendant and the issues are the same in each action, the court may try them together; but where the issues in the several cases are such as must be tried by a jury, and there is objection from one of the parties, and the circumstances are such that the trial of the cases together would tend to place the objecting party in a position not occupied by his adversaries, and that would probably give the latter an undue advantage in the trial, the court should not permit them to be tried together. Whether the cases should have been tried together was a matter in the discretion of the trial court, and such discretion should not be interfered with on appeal unless it is clearly made to appear that the discretion was abused."

See also Reid v. Nichols, 166 Ky. 423, 179 S. W. 440; Paducah Traction Co. v. Walker's Admr., 169 Ky. 721, 185 S. W. 119; Hutchison v. Ohio Valley E. Ry. Co., 183 Ky. 396, 209 S. W. 355; Graham's Admr. v. I. C. R. R. Co., 185 Ky. 370, 215 S. W. 60; Waller v. Lee Co., 187 Ky. 848, 220 S. W. 1071.

The main issues as to whether defendant was negligent and caused the accident were precisely the same in each case, but the issues as to contributory negligence were different, since any such negligence by one of the plaintiffs was chargeable to her alone and not to either of the other plaintiffs. This same difference, however, existed in several of the cases, supra, and is such that it easily may be taken care of in the instructions so as to prevent the possibility of any undue advantage to any party upon the trial.

Hence such difference does not necessarily require separate trials, and no other reason appearing therefor, we cannot say that the court abused a sound discretion in ordering these cases to be tried together.

The court gave three separate sets of instructions, and it must be admitted that upon the question of...