G.G. Fetter Company v. Coggeshall, Jr.

• Decision Date: 05 May 1925
• Citation: 208 Ky. 721
• Parties: George G. Fetter Company v. Daniel Coggeshall, Jr., By, etc.
• Court: United States State Supreme Court — District of Kentucky

208 Ky. 721

George G. Fetter Company v. Daniel Coggeshall, Jr., By, etc.

Court of Appeals of Kentucky. Common Pleas, Second Division.

Decided May 5, 1925.

Municipal Corporations — Instruction Held Not Prejudicial as Not Requiring Chauffeur's Negligence should have been Direct and Proximate Cause of Injury — "Thereby." — Instruction that if chauffeur failed to perform duties named and "thereby caused" his machine to collide with plaintiff and plaintiff was "thereby" injured, the law was for plaintiff, held not prejudicial for failure to require finding that chauffeur's lack of care was direct and proximate

cause of plaintiff's injury, "thereby" meaning by that or by that means, or, as used in instruction, meaning wholly and entirely by.

Appeal from Jefferson Circuit Court

JOHN P. HASWELL, JR., for appellant.

BECKHAM OVERSTREET for appellee.

OPINION OF THE COURT BY JUDGE SAMPSON.

Affirming.

George G. Fetter Company appeals from a judgment of $750.00 against it for personal injury to appellee, Coggeshall, Jr. Its only insistence in brief of counsel is that the instructions were erroneous in not requiring the jury to believe from the evidence, before finding for the plaintiff, that the failure of the defendant to exercise due care was the direct and proximate cause of plaintiff's injury. It cites in support of its contention the case of Ware v. Saufley, 194 Ky. 53.

The court in its instructions told the jury the several duties required of the chauffeur when driving a truck at the intersection of streets in the city of Louisville, and then instructed the jury that if it believed from the evidence that the chauffeur failed to perform the duties named, or any one or more of them, and "thereby caused his machine to come in collision with the plaintiff, Coggeshall, and the said Coggeshall was injured thereby, the law is for the plaintiff."

It is insisted by appellant that the expressions "thereby caused" and "was injured thereby" are not equivalent to the expressions "proximate cause" or "directly caused," commonly used in instructions of this kind. On the other hand, it is insisted by appellee that an instruction telling the jury that if the chauffeur of appellant's truck failed to perform certain duties, all specified in the instructions, or any one or more of them and thereby caused the machine to come in collision with the plaintiff, and the plaintiff was thereby injured, to find for the plaintiff, is sufficient to require the jury to believe...