Field v. Collins

• Decision Date: 24 March 1936
• Citation: 263 Ky. 474,92 S.W.2d 793
• Parties: FIELD v. COLLINS.
• Court: Kentucky Court of Appeals

92 S.W.2d 793

263 Ky. 474

FIELD v. COLLINS.

Court of Appeals of Kentucky

March 24, 1936

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by Mary Collins against Jessie Field and others. From an adverse judgment, the named defendant appeals.

Reversed and remanded.

Orie S Ware, of Covington, J. Garvey Davis, of Newport, and Seigfried Geismar, of Cincinnati, Ohio, for appellant.

Rouse &amp Price, of Covington, for appellee.

CREAL Commissioner.

On June 21, 1934, automobiles driven by Miss Jessie Field and Russell McCandless came in collision at the intersection of Greenup and Twentieth streets in the city of Covington. Miss Mary Collins was returning to her home from a grocery at the southwest corner of Twentieth and Greenup, and had reached a point at or near the pavement at the southeast corner. She was on or near the curb of the sidewalk along Twentieth street, and something like 6 to 10 feet from the curb line of the walk along Greenup. The automobile driven by McCandless was knocked or caused to veer over toward that corner, where it overturned, knocking Miss Collins down and pinning her underneath. She sustained injuries from which there is no hope of recovery; the most severe being to the spinal column causing paralysis of the lower portion of the body and extremities. Mrs. Davilla McCandless, mother of Russell McCandless, and another lady were riding in the automobile with him.

Miss Collins instituted this action against Jessie Field, Russell McCandless, and Davilla McCandless, and in her amended and substituted petition alleged that the automobile driven by Russell McCandless belonged to Davilla McCandless, at whose direction it was being operated; that both Russell McCandless and Jessie Field negligently and carelessly operated their respective automobiles at the time of entering on and crossing the intersection, and by their concurrent negligence and carelessness caused the automobiles to collide with great force and violence, whereby the automobile driven by Russell McCandless was swerved around over to the sidewalk along Greenup street, striking and injuring her as above indicated. She alleged that she had been damaged by reason of her injuries in the sum of $30,000, including $1,500 expended for hospital, doctors', and nurses' bills and $1,000 which she would have to expend for like purposes.

Davilla McCandless filed answer, denying that plaintiff was injured as the result of the concurrent or any negligence or carelessness upon the part of herself or Russell McCandless, and alleged that, if she was injured, her injuries were brought about and caused solely and only as a result of negligence and carelessness of defendant Jessie Field in operating the automobile driven by her. She denied she was the owner of the automobile driven by Russell McCandless or that it was operated under her direction or control.

By separate answer, Russell McCandless denied that plaintiff was injured as a result of his negligence or carelessness or concurrent negligence on the part of himself or Davilla McCandless or that he was negligence in the operation of the automobile, and alleged that any injuries received or sustained by plaintiff were brought about solely and only as a result of the negligence and carelessness of Jessie Field in the operation of the automobile driven by her.

Jessie Field also filed separate answer, in which she denied any negligence upon her part, and also denied the affirmative allegations in the answer of Davilla McCandless and affirmative allegations set up in the answer of Russell McCandless, and affirmatively alleged that any injuries sustained by plaintiff were due to the concurrent negligence of Davilla and Russell McCandless in the operation of the automobile driven by him at a high, excessive, and dangerous rate of speed without regard to stop signs as provided by ordinance of the city of Covington.

At the close of the evidence, it appearing that Mrs. Davilla McCandless was not the owner of the automobile driven by her son, the action as to her was, upon motion of plaintiff, dismissed.

The jury found for plaintiff in the sum of $21,000, $20,000 against Jessie Field and $1,000 against Russell McCandless. The motion and grounds for new trial filed by Jessie Field having been overruled, she is appealing from the judgment as against her.

As grounds for reversal it is argued in substance: (1) That the court erred in admitting incompetent and prejudicial evidence over the objections of appellant; (2) in refusing proper instructions offered by appellant; (3) in giving erroneous instructions; (4) that the verdict and judgment were unfairly apportioned and especially against appellant; and (5) that the verdict and judgment are not supported by the evidence and are contrary to the weight of the evidence and to the law.

Shortly before the accident, Russell McCandless suffered a sprained ankle and had laid off from work on account of it. He was asked whether this interfered with him in operating his automobile, and, over objections of appellant, was permitted to answer that it did not. He was further permitted to testify that Miss Field did not come around to see him after the accident to make any inquiry about his injury or offer assistance of any kind, and also, when asked what prevented him from seeing one of the automobiles after the accident, he was permitted to state that his mother was injured and he had to take her to the hospital.

Counsel for appellant are insisting that this evidence was incompetent and very prejudicial. In the circumstances, the evidence that Miss Field made no inquiry and offered no assistance of any kind should not have been admitted, but any error in that particular, standing alone, would not be so prejudicial as to...