Gregory v. Slaughter

• Decision Date: 18 January 1907
• Citation: 99 S.W. 247,124 Ky. 345
• Parties: GREGORY v. SLAUGHTER.
• Court: Kentucky Court of Appeals

99 S.W. 247

124 Ky. 345

GREGORY v. SLAUGHTER.

Court of Appeals of Kentucky.

January 18, 1907

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

"To be officially reported."

Action by T. Grant Slaughter against W. H. Gregory. From a judgment for plaintiff, defendant appeals. Affirmed.

Helm Bruce & Helm, for appellant.

Chas H. Shields, for appellee.

BARKER J.

The automobile which W. H. Gregory was driving through the streets of Louisville collided with T. Grant Slaughter, at the corner of Broadway and Brook streets, inflicting upon him painful and permanent physical injuries, to recover damages for which this action was instituted, with the result that the jury returned a verdict in favor of the plaintiff for the sum of $2,500. The defendant's motion for a new trial being overruled, he is here on appeal.

The substantial facts are these: Broadway street, at the place of the accident, runs east and west. Brook street, at the same point, runs north and south. T. Grant Slaughter, just before the accident, was at the northeast corner of Brook and Broadway streets, and desired to board a street car which was running on Brook street, going south. A regulation of the street car company forbids the stopping of its cars within the intersection of streets. The car in question, therefore could only stop to receive and discharge passengers after it crossed to the south side of Broadway. Slaughter, in order to catch the car when it stopped, ran across Broadway, probably keeping up with the car, which was moving slowly. At this time the appellant, Gregory, was driving his automobile along the south side of Broadway, going east. He did not see Slaughter, nor could Slaughter see the automobile coming, because the street car was between them. The rate of speed at which the automobile was being driven is disputed. The witnesses for the plaintiff (appellee) describe it as going at a terrific rate of speed; the appellant, who claims to be an experienced automobilist, states he was traveling at the rate of from eight to ten miles an hour. It is not seriously disputed that the automobile came up so close to the street car as to create the impression that there was danger of a collision between the two; but, before this could take place, by the use of the steering lever, appellant veered his automobile around the car, where he found Slaughter directly in his path, and within six feet of him. He claims (and it may be conceded to be true) that after he saw appellee he could not, by any sort of diligence, stop his automobile in time to prevent the collision and the infliction upon appellee of the injury complained of.

A careful reading of the evidence in this case convinces us that the appellant was driving his car at a high rate of speed, although, as we see it, appellant's own estimate of the rate may be accepted as true. His automobile weighed 2,300 pounds. He states it was going at the rate of eight to ten miles an hour. He was on one of the principal thoroughfares of a great city, and approaching a crossing where it was at least reasonable to expect pedestrians to be. He could not see this crossing for the reason that the street car was between him and it, and thus obscured his vision. Instead of stopping his automobile until the car passed and he could see whether there were pedestrians on the crossing beyond, he simply changed his direction so as to go around the passing car, and by his own act was brought face to face with the appellee at a distance too short to prevent the collision at the rate he was moving. This was, in itself, gross negligence to the verge of recklessness. In practical result there was no difference between what he did and if he had shut his eyes and driven his automobile over the street crossing without observing whether any one was in his way or not. So we conclude that, accepting appellant's own evidence as a correct statement of the facts, he was guilty of gross negligence in inflicting the injury which occurred to appellee.

It is urgently insisted, as a cause for reversal, that the verdict is excessive. The evidence as to the injury received by appellee shows that he was knocked down and dragged, partly clinging to the car and partly under it, for a distance of 10 or 15 feet. His hand was badly cut, one of his fingers broken, and he was severely bruised on various parts of his body, especially upon one of his legs. He was confined to his home several weeks. His hand is permanently injured; it being so stiff that he cannot close it entirely, although he can still write with it. Appellee's injury is far greater than the mere breaking, or the loss, of a finger. The whole hand is permanently injured, although the loss of its use is only partial. The cases relied on by appellant as showing that the verdict in this case is excessive did not involve the permanent injury to the whole hand, but were confined to the loss of one finger, or the mere breaking of a finger; nor was there any other injury inflicted. Taking all the facts of this case into consideration--the pain, both mental and physical, which appellee must have suffered, together with the partial loss of the use of his whole hand, and the loss in his business, to be hereafter discussed--we do not think the verdict was excessive.

Appellant also complains that the court erred in allowing incompetent evidence as a basis for a computation of the value of appellee's loss of time. Appellee is an insurance solicitor, whose remuneration depends upon the writing of insurance risks, and is based upon the amount of new business he secures. He was allowed by the court to state that his business loss during the time he was confined to his home amounted to $1,000. Upon cross-examination it was developed that his earning money was entirely contingent upon his writing insurance risks, and thereupon appellant moved the court to exclude from the jury all the evidence relative to the loss of business, upon the ground that the profits of the business were entirely speculative, and therefore could not be considered as a legitimate...