Finnegan v. Floyd Garage & Auto Livery Co.
| Decision Date | 11 May 1926 |
| Citation | 214 Ky. 416,283 S.W. 402 |
| Parties | FINNEGAN v. FLOYD GARAGE & AUTO LIVERY CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Kenton County.
Action by Katherine Finnegan, administratrix of the estate of Elizabeth Finnegan, deceased, against the Floyd Garage & Auto Livery Company. Judgment for defendant, and plaintiff appeals. Affirmed.
John T Murphy, M. J. Brown, Murphy, Brown & Harrison, and Charles H Purdy, all of Covington, for appellant.
Lewis F. Brown and Edward W. Pflueger, both of Covington, for appellee.
Elizabeth Finnegan was struck by a taxicab of appellee company on Main street in Covington in January, 1925, and so injured that she died within two hours, and this suit was commenced by her sister, Katherine, as her administratrix, against the garage company to recover damages for her alleged wrongful death. The case was submitted to a jury by instructions of which there is no complaint, and a verdict returned in favor of the garage company. The administratrix appeals, asking a reversal of the judgment on the following grounds: (1) The court erred in permitting testimony which was incompetent, over the objection and exception of the plaintiff, all of which was prejudicial to her; (2) of newly discovered evidence which was unknown at the time of the trial; (3) the verdict of the jury was flagrantly against the weight of the evidence.
The accident happened about 6:30 p. m. in January, when it was almost dark. Miss Finnegan had been to a news stand to get an afternoon paper, and was returning when she stepped in front of a moving taxicab and received the injuries from which she later died. Her sister, Miss Katherine, who is now administratrix, had accompanied her part of the way and was waiting on a corner a block or so away when she saw the car strike deceased. Several witnesses testified for the administratrix, saying, in substance, that the car was traveling at a rapid rate of speed shortly before it struck Miss Finnegan; that after it knocked her down it dragged her about 20 feet or more; that she was so injured when carried to the hospital that she was unconscious and expired within a short time. None of the witnesses for appellant were able to state just how the accident happened, except one, who said he saw Miss Finnegan just as she was struck by the car, but did not see her enter the driveway of the street. Most of them testified they did not hear any signal of the approach of the automobile to the street intersection only a few feet to the rear of where the accident happened. Clark Lucas was the driver in charge of the taxi at the time it struck Miss Finnegan and was called by the administratrix as a witness. He said he had been driving that particular cab about a year that it was in good condition; that it had both a foot and an emergency brake and that both of them were in good condition; that the streets were wet from a rain that had recently fallen; that at the time of the accident he was traveling at the rate of 12 to 14 miles per hour; that going at that rate he could stop the taxi by the use of brakes in a distance of about 3 or 4 feet; that in approaching its street intersection immediately before the accident he gave two honks of Klaxon on the taxi as a signal to his approach to the crossing; that he was driving along within about 2 feet of the curb on the right-hand side of the street; that Floyd Sebree was riding in the cab with him. In describing how the accident happened, he said:
"Well, I had already crossed over Fourth street and was beyond the pavement, the foot crossing of Fourth street, the south side of Fourth street, when the lady stepped from the curb in front of the car."
Asked how far he was south of the street intersection, he answered:
"Twenty or 25 feet.
Q. What did the lady do when you got to a point that was opposite her? A. She stopped and started back.
Q. Then what happened? A. She was hit.
Q. Now when she was hit what happened to her then? A. She was knocked down.
Q. How far did the automobile go before it stopped? A. 3 or 4 feet.
Q. Where was she when you brought the automobile to a stop? A. Between the front wheels and the rear wheels.
Q. Now, with reference to lights on your machine, can you state whether they were burning or not burning? A. They were burning."
He also stated that Miss Finnegan stepped off the curb to a point in the street only 2 or 3 feet in front of the moving car and that he could not stop the car, although he put on the brakes before it struck her, and that he stopped immediately. This witness was supported in his evidence by that of Sebree and other persons who witnessed the accident, but the two persons in the taxi were the only ones who could give a detailed account of how the accident happened. Other witnesses saw only a part of it and the parts they witnessed were not all the same. There was some evidence introduced on the trial to show that the body of Miss Finnegan had been dragged about 20 feet by the car after it struck her; that the water, snow, and ice on the street had been wiped clean for 20 feet and was backed up against her body when they took her from under the automobile. This evidence is denied by witnesses for the garage company.
1. Appellant's first complaint relates to the incompetency of evidence, the objectionable question being:
"Mr. Floyd, do you know whether or not the mechanical operation of that car was such, the next morning as, if operated by the chauffeur, the lights would burn?"
The answer to the foregoing question is as follows:
"Why the car was working all right the next morning; it was gone over thoroughly to see if there was anything wrong with the car and the car was in perfect shape; the car was driven all night."
The witness had been interrogated concerning the lights on the taxi, and said he had been at the garage all day, but was home at the time of the accident; that the car had been in use that day and was in perfect condition including lights as it was run all night, and next morning it was examined and found to be in perfect condition including the lights. Of course, the answer of the witness with respect to how the lights were the...
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