Fiechter v. City of Corbin

• Decision Date: 08 May 1934
• Citation: 254 Ky. 178,71 S.W.2d 423
• Parties: FIECHTER v. CITY OF CORBIN et al. (two cases). WHITAKER v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. et al.
• Court: Kentucky Court of Appeals

71 S.W.2d 423

254 Ky. 178

FIECHTER v. CITY OF CORBIN et al. (two cases).

WHITAKER v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. et al.

Court of Appeals of Kentucky

May 8, 1934

Appeal from Circuit Court, Whitley County.

Three separate actions by John H. Fiechter, suing by his father Ernest Fiechter, as next friend, by Charley Whitaker, and by Ernest Fiechter, administrator of Theodore Fiechter deceased, against the City of Corbin, the Southern Bell Telephone & Telegraph Company, and another, were tried together. Separate motions by defendants named for a peremptory instruction were granted, and plaintiff in each case appeals.

Affirmed.

Tye Siler, Gillis & Siler and W. B. Early, all of Williamsburg, and C. R. Luker, of London, for appellants.

Stephens & Steely, of Williamsburg, H. H. Owens, of Barbourville, and Trabue, Doolan, Helm & Helm, of Louisville, for appellees.

RICHARDSON Justice.

This action requires a review of a trial before a jury involving the death of one, and the injury of three young men while traveling in an automobile which collided with a telephone pole maintained by the Southern Bell Telephone & Telegraph Company on Main street in the city of Corbin, with the knowledge of the city.

In June, 1932, Charley Whitaker, 29 years old, a mechanic's helper, working for the state highway commission, and John Fiechter, Theodore Fiechter, and Raymond Mooney were traveling in the automobile, Whitaker driving, John Fiechter occupying the seat with him, and Theodore Fiechter and Mooney on the rear. Charley Whitaker, at the close of his day's work, left London, Ky. in the automobile at about 5:30 o'clock p. m., and drove it about 15 miles to Corbin. On reaching Depot street in Corbin he met with the Fiechters and Mooney, where he invited them to ride with him. They drove to South Corbin, turned around and returned, stopping at the South Corbin Hotel. It had been raining and was drizzling at the time. They stopped at the South Corbin Hotel; after entering it, within a few minutes, they returned and entered the car to continue their ride. It was between 9 and 9:30 o'clock at night.

"Corbin is a city of the third class with a population of probably 10,000. This street was the main street of the city, and it passed through the business section and principal residential section of the city. In addition to being the main street of the city, it is also a part of a Federal highway called the Dixie Highway, No. U.S. 25-W. It is the only north and south through highway in Eastern Kentucky. This highway is also a part of the Inter-County seat State Highway System. A large volume of through traffic constantly passes over it in addition to the heavy local State, county and city traffic. The automobile involved was traveling north on this way. The accident occurred at the foot of a hill, and at a curve in the highway. *** An automobile traveling north toward the place of the accident, travels down a rather steep hill toward Moore's Branch. Near the foot of the hill the street curves sharply to the left or west. Just at the point of this curve, the telephone pole was located. Opposite the telephone pole, and intersecting Main Street from the west, was Ninth Street. Ninth Street extended in an easterly direction until it intersected Main Street and terminated at Main Street as a dead-end street. In other words, Ninth Street did not extend at all east of Main Street. The highway was paved with concrete down the hill to a point near where the accident occurred. But a new bridge had been constructed over Moore's Branch just north of the place of the accident, and a fill had been made on either side of the bridge which covered up the original concrete street pavement and the old sidewalks. A new pavement of macadam surfaced with tarvia or similar material had been laid on this fill. A new concrete sidewalk had also been constructed."

The telephone pole, with which the automobile collided, was set about 6 months before the accident occurred. Before it occupied its place at the time of the accident, it was located about the center of the present sidewalk, when it was moved to where it was at the time of the accident; the sidewalk being reconstructed at the time of the removal of the pole. The occupants of the car were traveling on the right side of the street, going north, and, when they approached the intersection of Ninth and Main streets, an automobile came out of Ninth street, traveling at the rate of 18 or 20 miles an hour, and turned south, and it was within about 12 feet of their car when they first observed it; as it passed their car "awful close," Whitaker attempted to swerve his car to the right in the direction of the telephone pole, and the car struck the pole "right up with the parking lights;" "the front wheel did not touch it;" "it passed the pole;" "it 'slurped' (side-swiped) it;" "the front fender and bumper weren't bent up;" "he swerved the car to the right to keep from hitting the other car;" "his car swung over, cut back, hit the telephone pole;" "if he had not swerved to the right, he would have hit the other car;" "he did not get his car out on the sidewalk;" "he did not know the telephone pole was at that place;" "the impact knocked him out of the car;" "all of the occupants were thrown out of the car;" "one was killed and three of them injured." At the time the car stopped "it was setting, sloping west, the front part of it, and the other part was kinda across the street." The telephone pole was "knocked toward the sidewalk, about a seven inch space where it had been knocked over;" "it had been leaned over by the impact of the car;" "the whole body was splintered up and the right front tire had a hole in it, which looked like it had been cut." Several witnesses testified the hub of one of the front wheels struck the pole. The street at the point of the accident was 39.4 feet wide from sidewalk to sidewalk; the tarvia portion of it was 20 feet. It was 34 feet and 5 inches from the curve at the place of the telephone pole to the building opposite the telephone pole. There was a space of 7 feet from the tarvia to the pole. There was a drain or ditch about 4 to 6 inches deep and 18 inches wide on the side of the street next to the telephone pole. On the night of the accident it was filled with water. There was a drainpipe under the street to drain from the west across the highway. The sidewalk was 5 feet wide and 6 inches high. The drain or ditch extended 50 feet south along the edge of the sidewalk toward, and passed, the pole; the drain, of course, more or less filled at the time of rains with the wash from the street. This drain or ditch was constructed at the time the street was constructed for the purpose of carrying the water along the side of the street, and thereafter when it would fill up "the street men shoveled it out once in a while." On the night of the accident, the dirt started down from the sidewalk in "a little rolling ditch from the edge of the sidewalk by the side of the pole where the wheel, the front wheel, went right down into the ditch and the hub cut the pole and the top of the car had mashed the pole up above. There was a cut where it did that."

Three separate actions were instituted in the Whitley circuit court to recover damages of the city, Roe Smith, and the Southern Bell Telephone & Telegraph Company, caused by this accident. Ernest Fiechter, as the administrator of the estate of his son, Theodore Fiechter, sued to recover for the death of Theodore Fiechter; John Fiechter, suing by Ernest Fiechter, his father as his next friend, to recover for his personal injuries; Charley Whitaker, in his own behalf, to recover for his injuries, and damage to his car.

The court on its own motion ordered the three cases tried together. The plaintiffs objected; each requested a separate trial; their separate objection was overruled; and the actions were tried together. At the conclusion of their evidence, the city and the telephone company, separately, requested a peremptory instruction. The court sustained the motions of the telephone company and the city, and reserved his ruling on the motion as to Roe Smith. We shall consider and discuss the issue as to the peremptory instruction on the evidence and the reasonable inferences deducible therefrom as interpreted and presented by the Fiechters and Whitaker. In their brief they admit the only question for decision is whether the evidence introduced by them made out a case that should have been submitted to the jury; or, to state it another way, the lower court erred in peremptorily instructing the jury to find verdicts for the city and the telephone company.

To support their contentions, the Fiechters and Whitaker present Kentucky Utilities Co. v. Sapp's Adm'r, 249 Ky. 406, 60 S.W.2d 976; City of Providence v. Young, 227 Ky. 690, 13 S.W.2d 1022; Raines v. East Tenn. Tel. Co., 150 Ky. 670, 150 S.W. 830; Bevis v. Vanceburg Tel. Co., 121 Ky. 177, 89 S.W. 126; Postal Tel. Cable Co. v. Young, 172 Ky. 576, 189 S.W. 707, and other cases from this and other jurisdictions applying the same principles.

The principles stated in Jackson-Hazard Tel. Co. v. Holliday's Adm'r, 143 Ky. 149, 136 S.W. 135; City of Harrodsburg v. Abram, 138 Ky. 157, 7 S.W. 758, 29 L.R.A. (N. S.) 199; Gulfport, etc., Traction Co. v. Manuel, 123 Miss. 266, 85 So. 308; Greenland v. Des Moines, 206 Iowa 1298, 221 N.W. 953, are relied upon by the city and the telephone company. They also insist the evidence shows the occupants of the automobile were guilty of contributory negligence, sufficient to authorize the peremptory instruction.

The proven facts must determine which one of the two lines of cases is applicable and controlling.

It is a general rule, without exception, that...