Greer v. Richards' Adm'r

• Decision Date: 01 February 1938
• Citation: 115 S.W.2d 568,273 Ky. 91
• Parties: GREER et al. v. RICHARDS' ADM'R. SAME v. BOWMAN. SAME v. HESLER.
• Court: Kentucky Court of Appeals

115 S.W.2d 568

273 Ky. 91

GREER et al. v. RICHARDS' ADM'R.

SAME v. BOWMAN.

SAME v. HESLER.

Court of Appeals of Kentucky

February 1, 1938

Rehearing Denied May 3, 1938.

Appeal from Circuit Court, Breckinridge County.

Actions by Earl Richards' administrator for the death of Earl Richards, and by Isabel Bowman and by Louise Hesler, by her next friend, E. H. Shelman, for personal injuries sustained in an automobile accident, against Joe Greer and others. From adverse judgments, defendants appeal.

Judgment in each case affirmed.

Stanley B. Mayer, of Louisville, A. R. Kincheloe, of Hardinsburg Steinfeld & Steinfeld, of Louisville, and P. M. Basham, of Hardinsburg, for appellants.

Woodward Dawson & Hobson, of Louisville, and Walls & Kincheloe, of Hardinsburg, for appellees.

CREAL Commissioner.

On April 11, 1936, a taxicab owned by L. M. Rush and which at his instance was being driven by his son, Elvis Rush, and an automobile owned by Joe Greer, but which was being driven by Robert Kendall, came in collision on highway No. 60 in Breckinridge county, a short distance west of the Sinking creek bridge. As a result of the accident, Isabel Bowman and Louise Hesler, occupants of the taxicab, sustained injuries and Earl Richards, who was riding on its left running board was killed.

In actions against the owner and driver of both of the cars, the administrator has recovered judgment in the sum of $5,000, and Misses Bowman and Hesler have recovered judgments in the respective sums of $5,000 and $500, and all the defendants are appealing from each of the judgments.

All the actions were based on the alleged concurrent negligence of the drivers of the two automobiles. The answers of Greer and Kendall consisted of a general denial and also affirmative pleas of contributory negligence upon the part of the driver of the other automobile and of the plaintiffs, and that the accident and resulting injuries were due solely to the negligence of the driver of the other car. The answer of the other defendants was in effect the same. The affirmative allegations of the answers were traversed by subsequent pleadings.

At the outset we may dispose of appellant's contention that the trial court erred in ordering the cases heard together over their objection. A similar contention was made in Herndon v. Kentucky Traction & Terminal Company, and Clarke v. Kentucky Traction & Terminal Co., (4 cases) 214 Ky. 36, 281 S.W. 1036, 1037. The opinion held the contention to be without merit. All the cases grew out of the same accident and in the course of the opinion it is said:

"But the main issue, as to whether or not the appellee was negligent and caused the accident, was precisely the same in each of the four cases, and, although the issues as to contributory negligence were different, this difference could be and was easily taken care of in the instructions so as to prevent a possibility of any undue advantage to any party upon the trial."

The opinion in that case followed the prevailing rule in this jurisdiction as shown by cases therein cited, one of which is Benge's Adm'r v. Fouts, 163 Ky. 796, 174 S.W. 510, 515, wherein it is said:

"Whether the cases should have been tried together was a matter in the discretion of the trial court, and such discretion should not be interfered with on appeal unless it is clearly made to appear that the discretion was abused."

Clearly, there was no abuse of discretion in this instance since the trial of the cases together was in nowise calculated to prejudice the rights of appellants or either of them.

Apparently the principal ground urged for reversal in each of the cases in effect is that the court erred in overruling appellants' motion for directed verdicts because Richards and Misses Bowman and Hesler were each guilty of such contributory negligence as precluded recovery, it being maintained that Richards, an intelligent young man, who knew and appreciated the danger of riding on the running board, placed himself in such a dangerous position as to readily bring about the accident which resulted in his death and that he, in riding on the running board and the two young ladies who were injured in riding in an overcrowded taxicab in contravention of section 2739j-22, Kentucky Statutes, were guilty of negligence and their violation of such statute constituted negligence per se and precluded recovery. In argument that young Richards was guilty as a matter of law, counsel for appellants refer to a number of Kentucky cases, however, none of them so hold; but, on the contrary, all hold that the question as to whether one is guilty of contributory negligence in riding upon a running board of an automobile is a question to be determined by the jury. See Cincinnati, N. & C. Railway Company v. Rairden, 231 Ky. 141, 21 S.W.2d 236; Bell & Bell v. Rascoe, 250 Ky. 756, 63 S.W.2d 932; Tyler Co. v. Kirby's Adm'r, 219 Ky. 389, 293 S.W. 155, 157; Paducah Railway Company v. Nave, 204 Ky. 733, 265 S.W. 289; and authorities cited in those opinions.

A number of cases from foreign jurisdictions relied upon in substance hold that riding on a running board of an automobile, etc., in violation of a statute or city ordinance is contributory negligence as a matter of law and recovery is thereby precluded, but so far as our research discloses, all those cases were dealing with penal statutes or ordinances directed against the person so riding on the motor vehicle. Section 2739j-22, cited and relied on by counsel for appellants, provides in effect that the operator of a motor vehicle engaged in transporting passengers for hire shall not permit a greater number of passengers than 25 per cent. over its seating capacity, etc., and that passengers shall not be permitted to ride upon the step or running board of such motor vehicle. It will therefore be seen that this is a regulatory statute and that its purpose is to prevent abuses by carriers that might result in danger or inconvenience to the traveling public, and it is not a penal statute against passengers or other persons who may ride in or upon such motor vehicle.

The evidence discloses that at the time of the accident ten persons, including the driver, were riding on the inside of the taxicab which was a five-passenger sedan and Richards was on the running board. Greer and Kenda and two young ladies were in the former's automobile which was a coupé. The accident occurred near midnight. The driver of each car discovered the other approaching when some distance away. According to the occupants of each car, the other was being driven to its left of the center of the road. The taxicab, which was going westwardly, overturned two or three times after the collision and landed in a ditch on the south side of the road and the other automobile swerved across the road and headed into a bank on the north side. They sideswiped and both were badly damaged especially on the left side. The paved portion of the highway was 18 feet wide and shoulders on each side were about 3 feet in width and covered with screenings or gravel so there was ample room for the automobiles to pass without danger to the occupants of either. It would serve no good purpose to enter into a detailed statement of the evidence. It is sufficient to say that there is ample evidence to warrant the jury's conclusion that the accident was due to the concurrent negligence of the drivers of the automobiles. Since, as indicated, the question of contributory negligence was a question for the jury and there was sufficient evidence to take the case to the jury and to sustain the verdict, it follows that appellants nor any of them were entitled to a directed verdict.

It is argued that the court erred in permitting a witness, who was at the scene a day or two after the accident, to testify that Elvis Rush pointed out to him where his taxicab stopped after the accident. Upon objection being made, the court...