Fullenwider v. Brawner
| Decision Date | 01 May 1928 |
| Citation | 224 Ky. 274 |
| Parties | Fullenwider, et al. v. Brawner. |
| Court | United States State Supreme Court — District of Kentucky |
3. Appeal and Error. — Where instructions appear twice in record, once in bill of exceptions and once among orders certified by the clerk, court is bound to assume that the instructions certified in the bill of exceptions are correct.
4. Negligence. — Proximate cause of an injury is generally a question of fact for the jury, where there is conflict in evidence, or if conflicting conclusions may be derived therefrom, but, where facts are not in dispute, or inferences do not present room for contrary conclusions by reasonable men, question of proximate cause is one which the court may determine.
5. Appeal and Error. — Litigant who fails to offer additional instructions supplementing correct ones given may not complain that the instructions given were not sufficiently clear, complete, or definite.
6. Appeal and Error. — In action for injuries resulting from collision between plaintiff traveling on horseback and defendant's automobile omission of instruction under Ky. Stats., sec. 2739g-35, relative to duties of motor vehicle drivers, to submit to jury question whether injury was proximate cause of defendant's negligence, held not erroneous or prejudicial, where no other intervening cause of injury was claimed, and where defendant failed to ask for specific instruction or for additional explanation or definitions.
7. Automobiles. — In action for injuries resulting from collision between one riding on horseback and defendants' automobile, requested instruction that defendants were entitled to travel not to exceed 40 miles an hour, if way ahead was unobstructed, and there was no traffic in view, held properly refused under Motor Vehicle Act, sec. 2739g-51, and Amendment of March 20, 1926 (Laws 1926, c. 109), which makes speed in excess of 40 miles an hour prima facie evidence of unreasonable and improper driving, since instruction did not conform to the statute, and giving of a correct instruction thereunder would not have been favorable to defendants.
8. Automobiles. — Travelers on highway riding on horseback are governed by common law, and must exercise ordinary care for their own safety, question of what amounts to ordinary care being for jury's determination under facts of particular case, since statute governing motor vehicles (Ky. Stats., c. 88b, sec. 2739g-1) is inapplicable.
9. Automobiles. — In action by horseback rider against persons riding in automobile for injuries resulting from collision, instruction that plaintiff was under duty to keep reasonably on the right side of the street as he approached automobile held properly refused, since horseback rider was merely under duty to exercise ordinary care, and question as to what constituted ordinary care under the circumstances was for the jury; there being no statute relative to that particular point.
10. Trial. — In action by horseback rider for injuries resulting from collision with automobile, instructions requiring verdict for defendants if plaintiff's negligence contributed to injury, and defining negligence as failure to exercise that degree of care which ordinarily careful and prudent persons usually exercise under like circumstances, held correct and adequate under Civil Code, sec. 317, subsec. 5, where defendants failed to offer any other instructions regarding contributory negligence.
11. Appeal and Error. — Refusal of court to dismiss entire jury panel and summon a new one after several jurors had stated, in presence of others, that they saw tracks of automobile on wrong side of road, held not prejudicial, in action for injuries resulting from collision, where court discharged the jurors who made the statement, and where it developed without contradiction that the collision occurred on the side of the road indicated in the remarks of the rejected jurors.
12. Trial. — Argument, based on facts appearing in evidence and inferences fairly deducible therefrom, is proper.
13. Appeal and Error. — Verdict of jury assessing damages will not be disturbed, unless amount awarded is so disproportionate to the injury that it strikes the mind at first blush as excessive, and is accountable for only as a result of passion and prejudice.
14. Damages. — $6,044 to 32 year old blacksmith, earning average of $5 a day, for comminuted fracture of leg, injuries to nose, head, chest, and back, and for permanent impairment of use of leg, and for pain and suffering, held not excessive.
Appeal from Henry Circuit Court.
GILBERT, PICKETT & MATTHEWS and H.K. BOURNE for appellants.
J. WIRT TURNER, TODD & BEARD, FRANKLIN, TALBOTT & CHAPMAN and W.E. DARRAUGH for appellee.
Affirming.
Edgar Fullenwider and Malcom Zaring, of Shelbyville, had been dove hunting in Henry county. Before returning home, they proceeded on business to New Castle. Zaring was driving Fullenwider's Lincoln car, and they came in collision with W.J. Brawner, who was traveling horseback on the highway leading from New Castle to Eminence. The horse was killed, and Brawner was seriously injured. Brawner instituted this action against Fullenwider and Zaring to recover damages for the injury to his person and property, and recovered a judgment for $6,500. Fullenwider and Zaring have appealed, insisting that error to their prejudice intervened in the trial. The facts essential to an understanding of the questions will appear in the opinion in disposing of the various contentions.
It is first insisted that instruction No. 1, given to the jury, was erroneous, in that it defined only the duties of the defendants, and was silent as to the correlative duties of the plaintiff, and failed to submit to the jury the issue of proximate cause. The instruction was not defective for failure to define the duties of plaintiff. That was done in other instructions, which was permissible practice, as it tends to simplicity and clarity for the respective duties of the parties to be separately set forth. Louisville Bridge Co. v. Iring, 180 Ky. 729, 203 S.W. 531; L. & N. R. Co. v. King, 131 Ky. 347, 115 S.W. 196; L. & N.R. Co. v. McCoy, 177 Ky. 415, 197 S.W. 801; Danville L.P. & T. Co. v. Baldwin, 178 Ky. 184, 198 S.W. 713; Stearns C. & L. Co. v. Williams, 171 Ky. 46, 186 S.W. 931; L. & N.R. Co. v. Park, 154 Ky. 269, 157 S.W. 27.
The instructions must be read together and considered as a whole, and, when so treated, if they present the law of the case, it is all that is required. Borderland Coal Co. v. Miller, 179 Ky. 769, 201 S.W. 299; Borderland Coal Co. v. Kirk, 180 Ky. 691, 203 S.W. 534.
Instruction No. 1, in a form frequently approved, defines to the jury the duties of drivers of motor vehicles on the public highway as prescribed by section 2739g35, Kentucky Statutes, and the decisions of this court (Cumberland Telephone & Telegraph Co. v. Yeiser, 141 Ky. 15, 131 S.W. 1049, 31 L.R.A. (N.S.) 1137), and then proceeds:
"And if the jury believe from the evidence that the defendants failed to exercise these duties, or any of them, if there was such failure, and that as a direct and proximate result of such failure, if any, the plaintiff suffered the injuries, if any, and losses, if any, of which he complains, then the jury should find for the plaintiff, and, unless they so believe, they should find for the defendants."
The instructions appear twice in the record, once in the bill of exceptions, and once among the orders certified by the clerk. We are bound to assume that the instructions certified in the bill of exceptions are correct copies of the ones actually given. Alexander v. Cin. N. O. & T.P.R. Co., 202 Ky. 475, 260 S.W. 14; Pendergrass v. Coleman, 207 Ky. 783, 270 S.W. 65. In the copy of instruction No. 1 appearing in the bill of exceptions, the clause which we have italicised in the above quotation from it does not appear. We are therefore compelled to decide whether that omission rendered the instruction prejudicially erroneous.
The proximate cause of an injury is not a question of science or legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it, and, like any other question of fact, it is ordinarily, but not invariably, a question for the jury to determine. It is a question for the jury when there is a conflict in the evidence respecting it, or if conflicting conclusions may be derived therefrom. Beiser v. C.N.O. & T.P.R. Co., 152 Ky. 523, 153 S.W. 742, 43 L.R.A. (N.S.) 1050; Ware v. Saufley, 194 Ky. 53, 237 S.W. 1060, 24 A.L.R. 500; Denker Transfer Co. v. Pugh, 162 Ky. 818, 173 S.W. 139; C. & O.R. Co. v. Holbrook, 208 Ky. 488, 271 S.W. 583; Interstate Coal Co. v. Love, 153 Ky. 323, 155 S.W. 746; Geo. G. Fetter Co. v. Coggeshall, 208 Ky. 721, 271 S.W. 1075.
If the facts are not in dispute, or if the inferences arising from the facts do not present room for contrary conclusions by reasonable men, then it is a question the court may determine. The court may find as a matter of law from the facts proven that the injury complained of did not result from the negligence proven. Smith v. C. N.O. & T.P.R. Co., 146 Ky. 568, 142 S.W. 1047, 41 L. R.A. (N.S.) 193; Hummer v. L. & N.R. Co., 128 Ky. 486, 108 S.W. 885, 32 Ky. Law Rep. 1315; Goins v. North Jellico Coal Co., 140 Ky. 323, 131 S.W. 28; Illinois Cent. Ry. Co. v. Dupree, 138 Ky. 459, 128 S.W. 334, 34 L.R.A. (N.S.) 645; Dunn v. Central Asylum, 147 Ky. 812, 248 S.W. 216.
In this case the accident and injury were necessarily the result of negligence. Each party claimed it was caused...
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West Kentucky Coal Co. v. Shoulders' Admr.
...whole and considered together properly present the law applicable to the case, no valid objection can be made to them. Fullenwider v. Brawner, 224 Ky. 274, 6 S.W. (2d) 264. We find no merit in the complaint that the instructions were prejudicial to appellants. But on another trial the corre......