Fullenwider v. Brawner

• Decision Date: 01 May 1928
• Citation: 6 S.W.2d 264,224 Ky. 274
• Parties: FULLENWIDER et al. v. BRAWNER.
• Court: Kentucky Court of Appeals

6 S.W.2d 264

224 Ky. 274

FULLENWIDER et al. v. BRAWNER.

Court of Appeals of Kentucky

May 1, 1928

Appeal from Circuit Court, Henry County.

Action by W. J. Brawner against Edgar Fullenwider and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Gilbert Pickett & Matthews, of Shelbyville, and H. K. Bourne, of New Castle, for appellants.

J. Wirt Turner, of New Castle, Todd & Beard, of Shelbyville, and Franklin, Talbott & Chapman, and W. E. Darraugh, all of Lexington, for appellee.

WILLIS J.

Edgar Fullenwider and Malcolm Zaring, of Shelbyville, had been dove shooting 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. Holkrook, 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 was necessarily the result of negligence. Each party claimed it was caused by the negligence of the other. Neither claimed that there was any other intermediate efficient cause of the collision. The jury has found under the instructions that the plaintiff was free from contributory negligence, and that the defendants violated one or more of the duties imposed upon them by law. In view of that finding, we cannot say that a failure to give a special instruction on the issue of proximate cause in this case was erroneous or prejudicial. Schneider v. Rolf, 211 Ky. 669, 278 S.W. 100; City of Louisville v. Hart, 143 Ky. 171, 136 S.W. 212, 35 L. R. A. (N. S.) 207; Metallic Comp. Coal Co. v. Fitchburg Ry. Co., 109 Mass. 277, 12 Am. Rep. 689.

The appellants apparently assumed as much, since they did not ask for any specific instruction submitting proximate cause, or for any amplification of the ones given. If attention had been called to the omission, doubtless it would have been supplied. Unless a litigant offers additional instructions supplementing correct ones given, he may not complain that they were not as clear, complete, or definite as they could have been made if attention had been directed to the point. L. & N. R. Co. v. Simrall's Adm'r, 127 Ky. 55, 104 S.W. 1011, 31 Ky. Law Rep. 1269; Patterson v. Moss Tie Co., 97 S.W. 379, 30 Ky. Law Rep. 9.

The court was not called upon, in the situation here appearing, to embody in the instruction any additional explanations or definitions, and failure to do so was not prejudicial to appellants. Otis Hidden Co. v. Newhouse, 204 Ky. 324, 264 S.W. 731; Herndon v. Ky. T. & T. Co., 214 Ky. 36, 281 S.W. 1036.

Appellants also complain of the refusal of the court to give instructions A and B offered by them. Instruction A in substance advised the jury that it was the duty of plaintiff to keep reasonably to the right side of the road as he approached the automobile, and, if he failed to do so, and by reason thereof was injured, the jury should find for the defendants.

Instruction B was to the effect that the defendants were entitled to travel not to exceed 40 miles per hour if the way ahead was unobstructed and there was no traffic in view. It was obviously proper to refuse instruction B, as there is no absolute right to travel 40 miles an hour on the public highway. The statute, section 2739g51, provides that no operator of a vehicle on a public highway shall drive at a greater speed than is reasonable and proper, having regard for the traffic and the use of the highway. The statutory standard thus declared is affected by several provisions applying to varying situations, one of which is (amendment of March 20th, 1926 [Laws 1926, c. 109]) that a speed in excess of 40 miles an hour shall be prima facie evidence of unreasonable and improper driving. Appellants did not offer an instruction conforming to this statute. If it could be said that the idea was suggested by the one offered, and should have been embraced in a proper instruction, the failure operated only against the plaintiff, as it is undisputed in the evidence that the appellants were passing over the crest of a hill where they could not see ahead, and they would not have been helped by an accurate instruction on that point. Slate v. Witt, 188 Ky. 133, 221 S.W. 217.

Furthermore, an instruction authorized by that statute must have advised the jury that speed in excess of 40 miles an hour, even if there had been a clear, unobstructed road, was prima facie evidence of negligence. Such an instruction would have favored plaintiff, as much of the evidence showed on the occasion a greater speed than 40 miles an hour. Consequently, instead of helping appellants, such an instruction, properly formulated, would have operated to their disadvantage. Since the instruction they offered was improper, and the one it suggested would not have favored them, no error can be predicated on the action of the court in that particular. American Dye Works v. Baker, 210 Ky. 508, 276 S.W. 133; Wight v. Rose, 209 Ky. 803, 272 S.W. 472; Hornek Bros. v. Strubel, 212 Ky. 631, 279 S.W. 1087.

Instruction A raises a question that has not been directly decided although it is ruled by familiar principles. The statute governing motor vehicles traveling on the public highway includes all vehicles, except road rollers, and such vehicles as travel exclusively on rails. Chapter 88b, Ky. Stat. § 2739gl. We are referred to no statute defining the...