Guyan Chevrolet Co. v. Dillow

• Decision Date: 16 June 1936
• Citation: 95 S.W.2d 796,264 Ky. 812
• Parties: GUYAN CHEVROLET CO. et al. v. DILLOW.
• Court: Kentucky Court of Appeals

95 S.W.2d 796

264 Ky. 812

GUYAN CHEVROLET CO. et al. v. DILLOW.

Court of Appeals of Kentucky

June 16, 1936

Appeal from Circuit Court, Boyd County.

Action by Lizzie Dillow against the Guyan Chevrolet Company and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

Dysard & Tinsley, of Ashland, for appellants.

John T Diederich, of Ashland, for appellee.

RICHARDSON Justice.

This is an action to recover damages for personal injuries alleged to have resulted from the negligent backing of an automobile out of a garage across the sidewalk. On a verdict of the jury in favor of Lizzie Dillow a judgment for $2,500 was rendered against J. B. Rich, doing business under the firm name of Guyan Chevrolet Company, and Avery Smith, the operator of the automobile at the time she claimed she was injured.

They are here urging a reversal of the judgment on the ground the verdict is flagrantly against the weight of the evidence, and is excessive; she was guilty of contributory negligence as a matter of law, and improper argument of her counsel. A disposition of these questions calls for a review of the evidence adduced and the principles applicable thereto.

"On November 28th, 1934, the appellee, Lizzie Dillow, was returning to her home after having visited the offices of relief headquarters in the city of Ashland. She was walking on the sidewalk, along the south side of Winchester Avenue proceeding in a west direction. As she approached the entrance to the sales rooms and garage of Guyan Chevrolet Company, the appellant, Smith, was in the act of backing an automobile from the building, across the sidewalk to the street." *** Mrs. Dillow "was familiar with the location of the garage, knew it was a garage, and knew that automobiles were continually driven into and out of the garage, and, of course, across the sidewalk to the street."

As she was going down the street on the sidewalk the backing automobile struck her, and as she claims she "was knocked out," put in the car and taken to Dr. Winan's office. She testified that she did not know whether it knocked her down or not. Her language is: "Well, I just can say it hit me and I was knocked out and I was put in the car and took to the doctor, who attended me." She claims that Smith, the operator of the automobile at the place of the accident, stated that "he did not see her"; "did not know she was there." Prior to the accident her health was good; "she did her own work," "walked to town," "washed, ironed, did her own housework and waited on a sick daughter." Her family consisted of five children, and with the help of her little children she did her general housework, including cooking. After she left Dr. Winan's office, she returned to her home, sat down to eat, but could not eat; she walked from the kitchen to a bed and laid down, and "has not since sat up for a whole day"; that "she had been up and down ever since," and occasionally sat in a chair. She testified that she was "hurt through the shoulders and down her side"; her "head, face and foot were injured"; a discoloration appeared on her face and neck; her face and shoulder "became swollen," and she has continuously suffered intense pain in her breast and left shoulder, across her back and in her head, and has become totally and permanently disabled. She has been unable to sleep on account of the condition of her nerves. Prior to her injuries she was in good health and had not been sick, except trachoma in her right eye and an attack of "flu" two years before she sustained the injuries. Dr. Debord was her family physician and had been for 25 years. He was called about 6 o'clock the evening of the accident, which occurred about 2:30, and has continuously attended her as a physician.

Dr. Debord testified that he had been her family physician for about 25 years and had attended her at the birth of her children; had had occasion to observe her health prior to the accident; "it had been good." "Her health had been good for the last four or five years since she had got the family off of her hands,--raised up." "About two or three years ago she had the flue or grip or something like that." After her recovery therefrom, her health was normal. "She was able to work and travel about on the highway." At the time he was called to see her on the evening of the accident he "found her to be suffering a good deal," "in a state of shock." She "had a severe bruise"--"this discoloration continued three or four weeks, treated her with hot applications to reduce the condition of the shoulder." He found an injury "to the side of her face, to her left shoulder and down in the region of the kidney, just above the kidney, seemed to be injured at that time and the left foot also." He has "treated her daily ever since." He testified that at the time of the trial "she suffered with her kidney, or over the region of the kidney." "On an urinalysis," he "found no albumen or sugar, but it showed a chronic kidney trouble." She had an injury in the region of her kidney. Later, she developed "rales" in her lungs, indicating lung trouble which has finally developed into tuberculosis. He stated that since the evening of the accident, "she had not been able to sit up a half an hour at the time, and if she does, it starts a temperature and she is troubled with her head." "It seemed like the suffering reached back into the head above the ear." "There is a good deal of swelling there yet, nothing like it was the first three or four weeks after she was hurt." It was his opinion that all of the ailments from which she was suffering at the time of the trial, "dates back directly to the blow, when she was hit." It was his opinion that her troubles were solely attributable to the injuries sustained by being hit by the automobile, and "to nothing else but the injuries." He expressed the opinion that "she would never get well"; that "it had been four months since her injury and her condition had not improved, though cleared up," and that "her injury in the region of the kidney, shoulder and chest had not improved in four months." When he first visited her she narrated her experience at the time she was injured and detailed how she had sustained the injuries to her foot, head, shoulder, and sides, down in the region of the kidney.

Her and Dr. Debord's testimony is corroborated by Mrs. R. F. Adams, Mrs. Carrie Menshouse, her neighbors, and Miss Birdie Dillow, her daughter, and Dr. J. Cecil Sparks who examined and diagnosed her ailments. He also claimed that an Xray picture of her made by Dr. Cooper confirmed his diagnosis.

Avery Smith, the operator of the automobile at the time she sustained her injuries, deposed that as he started to back the automobile out of the garage onto the street, he gave a signal. He was backing it down grade; had his foot on the clutch and the brake at the same time; and "immediately" when he heard "the thud," he "stepped on the brake," and it was his opinion that he did not thereafter move "over a foot at most."

He was asked and answered thus:

"Q. When you looked back where was Mrs. Dillow and just what was she doing? A. She was at the left rear wheel, at the side of the car, and she was straightening her glasses up on her face. ***

"Q. Then as you came out of the door you could have leaned out and looked back? A. 'Sure,' 'yes, the door is ten feet wide and the car is four or five feet, plenty of room.'

"Did you? A. No, I didn't.

"Q. You didn't see the car strike the woman? A. I did not.

"Q. You feel it? A. I heard the bump on the car."

The automobile was of a ton and half capacity and weighed 2,900 pounds. The garage entrance was located next to the easterly wall of the garage and extended to the sidewalk. The garage was solid and contained no window or opening other than the front entrance.

Earl Sexton testified that he was in the act of backing out a car in the garage in front of Smith's at the time of the accident. He looked over his right shoulder and saw a woman before the Smith car touched her; he sounded his horn and he stated that he "thought Smith blew his horn." "She barely touched the side of the car and she stepped back, she didn't go down to her knees." He left his car and went to her and asked if she were hurt and she said: "No." He stated that he was not positive Smith blew the horn on his automobile.

O. B. Stafford was in a car in front of the garage. He "thought he heard a car blow," but was unable to say that he did hear it. He looked up and the Smith car was out on the sidewalk and Mrs. Dillow "was just ready to go right into it;" "she did;" "she didn't fall;" "it looked like it just ran over her foot and may have just touched her body;" "it looked like 'a blind spot' on the back end of the car hit about her right shoulder, between the glass and the rear--the side glass and the rear there is a blind spot there--there by that panel--that is a blind spot--that is where they hit--right on that curve there."

Mrs. Joe Mock was at the office of Dr. Winan at the time Mrs. Dillow was carried from the garage to his office. Mrs. Dillow said in her presence that "her foot was numb and had no feeling in it." "She was anxious to get home." "She was among strangers."

The day following the accident, Mrs. Adams called Rich and claims she stated to him that Mrs. Dillow "needed help." The next day instead of affording her "help," he sent Dr. Winan to examine her as a physician. She refused to permit Dr. Winan to examine her.

To overcome the foregoing evidence, substantiating Mrs Dillow's cause of action and her right to recover, Drs. Winan, Cooper, and Gambill substantially deposed that Mrs. Dillow was not injured at the time of the accident, had not been since, and was not at the time of the trial,...