Gretton v. Duncan

• Decision Date: 28 April 1931
• Citation: 238 Ky. 554
• Parties: Gretton v. Duncan.
• Court: United States State Supreme Court — District of Kentucky

238 Ky. 554

Gretton v. Duncan.

Court of Appeals of Kentucky.

Decided April 28, 1931.

1. Automobiles. — Amended petition alleging failure to warn and negligent operation, as well as "rapid" speed of automobile which struck child held sufficient.

2. Automobiles. — One driving automobile along much-used highway through compactly built up district owed lookout duty to persons on or about to enter it.

3. Automobiles. — Motorist owed duty to warn child of his approach, if he saw, or by exercising ordinary care could have seen, her approaching and crossing highway.

4. Automobiles. — Whether driver of automobile was running at reasonable speed, kept proper lookout, and exercised ordinary care to avoid injuring child held for jury on conflicting evidence.

5. Automobiles. — Whether motorist was absolved from liability for injuries to child because of latter's sudden appearance on highway held for jury on conflicting evidence.

6. Damages. — While evidence of earning power is admissible in personal injury suit, neither allegation nor proof of specific pecuniary loss is indispensable to recovery.

7. Damages. — Allegation of permanent impairment of earning power by alleged permanent injury is unnecessary.

8. Damages. — Extent of impairment of earning power by permanent injury is for jury to determine by applying common knowledge and experience to facts.

9. Damages. — Instruction to allow sum which would reasonably compensate plaintiff for permanent injury held erroneous as furnishing no guide for determining amount of damages.

10. Trial. — Instruction authorizing finding for defendant motorist on ground of plaintiff's sudden appearance in path of car only if defendant was observing duties stated in previous instruction held erroneous.

11. Automobiles. — Ordinarily, necessity of sounding automobile horn as warning to pedestrians or other vehicles is for jury.

12. Automobiles. — Instruction on warning, in action for injuries to child struck by automobile, held erroneous in omitting words "when necessary."

13. Automobiles. — Whether approaching automobile was within 150 feet from automobile proceeding on left side of highway when it struck child held for jury (Ky. Stats., sec. 2739g-35).

Ky. Stats., sec. 2739g-35, provides that automobile shall travel on right side of highway whenever possible, unless left side is clear of all other traffic or obstructions and presents clear vision for at least 150 feet ahead, and one accompanying driver of approaching car testified that they were between 50 and 75 feet from place where child was struck.

14. Automobiles. — Instruction as to motorist's duty to travel on right side of highway held erroneous as omitting statutory exceptions and duty to use ordinary care (Ky. Stats., sec. 2739g-35).

Appeal from Harlan Circuit Court.

J.B. SNYDER and H.F. WHITE for appellant.

J.L. DAVIS for appellee.

OPINION OF THE COURT BY JUDGE CLAY.

Reversing.

Suing by her father and next friend, Irene Duncan an infant, brought this action against W.C. Gretton to recover for personal injuries. The jury fixed her damages at $2,000, and the defendant appeals.

The accident happened on the public highway between Harlan and Pineville, at about 4 o'clock on the afternoon of May 20, 1929. The Duncan family live on the right side of the road going toward Harlan. Irene Duncan, who was then about 6 years of age, had been sent by her mother to the other side of the road to get some meal. Returning she had the pan in her hand, and, after walking across a little platform or log to the left of the highway she started across the highway, and was struck by Gretton's car, who was en route to Harlan. The accident happened a few yards from the city limits of Harlan. On one side were 13 houses, and on the other side 10 houses.

According to the girl's father, the highway is about 16 feet wide, and it was 5 feet distant from where Irene came off the platform. He measured the distance between the place where the car began to skid and the place where it had stopped, and it was 21 feet. The road was straight, and the garage on the side of the road was about 30 or 40 feet back toward the foot of the hill from where the car skidded. Irene stayed in the hospital for 38 days. Her leg was broken, and her face injured and permanently scarred. She limped all the time and complained of her leg aching and hurting. After leaving the hospital, she was confined to her bed and room for two or three months. It was drizzling rain that day. Nevella Duncan, Irene's mother, testified that she sent Irene across the road. She started to the door and heard the glass breaking, and, when she got there, Irene was hit. She noticed where the car skidded, and pointed out the marks to her husband. At the time she testified Irene still complained of her leg and face hurting her, and limped right smart. On cross-examination she stated that when she got to Irene she was lying about middleways of the road. The marks in the road came toward Harlan. They did not run straight, but swerved to the right. It was the right headlight that struck Irene. The woman to whose house she sent Irene lived up the hill above Ben Middleton's garage, and the path was on the Harlan side. Alice Smith, who lived a few feet away from the Duncan residence, testified that, as Irene came down from the woman's house across the foot log, she looked up and down the road. She saw Irene walking across the foot log with the cup in her hand. At that time Mr. Gretton's car was going 30 or 40 miles an hour. Her husband drove a taxi, and she was well acquainted with the speed of cars. The car was mostly on the left-hand side going toward Harlan. She could not say whether the headlight or the bumper hit the child. Irene was in an ordinary walk at the time she was struck. When she saw Irene, Irene was standing holding to the post and was looking. J.D. Smith testified that he was sitting on the porch at his home and saw the car hit the little girl. He thought the child was hit on the other side of the road. He had a little garage on the opposite side of the road. He did not know how fast the car was running. It stopped on the upper side next to the bank. He did not hear the car blow its horn or anything. At the time of the accident he did not see any other car on the road. At the place of the accident the road was straight for quite a distance both ways. According to W.G. Ferguson, a city letter carrier, he was riding down the highway with Fred Blair. He saw the accident about 300 yards down the road. He saw the child when she was hit, and she appeared to be about in the middle of the road. Just before the accident the car appeared to swerve and turn toward the river. When he reached the place of the accident, the child was 10 or 12 feet beyond the front of Gretton's car, and the car was pretty close to the edge of the pavement. Dr. W.P. Cawood testified that Irene had a fractured thigh, and some cuts about her face. They set the fracture and put her in a cast. Her right leg was about a quarter of an inch shorter than the left. She may have some permanent injury, and he thought the scars on her face would always be there. In his opinion they got a good result from the operation. He also thought Irene suffered.

On the other hand, Gretton testified that he was driving a Cheverolet coupe on the right-hand side of the road, and was running from 20 to 25 miles an hour. The child came suddenly from the left-hand side of the road and from the upper side of the garage, which was between him and the child. It occurred to him that she made an effort to get across the road hurriedly. He was 10 or 15 feet, maybe 20 feet, from the child when he saw her coming in the pathway of his car. He put on the brakes which were in good order, hit the horn button, and swerved to the right to avoid striking her. The car skidded from 15 to 25 feet. The left-hand side of...