Haller's Pet Shop v. Pearlman

• Decision Date: 27 February 1934
• Parties: HALLER'S PET SHOP et al. v. PEARLMAN.
• Court: Kentucky Court of Appeals

69 S.W.2d 9

253 Ky. 130

HALLER'S PET SHOP et al. v. PEARLMAN.

Court of Appeals of Kentucky

February 27, 1934

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

Action by Mildred Pearlman, by her father and next friend, Samuel Pearlman, against Gertrude Haller, trading and doing business as Haller's Pet Shop, and another. From a verdict and judgment against both defendants, they appeal.

Affirmed.

Blakey Davis & Lewis and Huffaker, Hogan & Berry, all of Louisville for appellants.

Hubbard & Hubbard, of Louisville, for appellee.

CLAY Justice.

Mildred Pearlman, an infant 17 years of age, brought this suit through her father and next friend, Samuel Pearlman, against Gertrude Haller, trading and doing business as Haller's Pet Shop, and J. W. Ford, to recover damages for personal injuries. From a verdict and judgment against both defendants for $2,000 they appeal.

About 4:30 on the afternoon of March 28, 1932, Walter Ford, who was driving a five-passenger Packard car belonging to his father, J. W. Ford, met several of his friends, including Mildred Pearlman, at Forty-First and Market streets in Louisville. He invited them to accompany him for the purpose of taking a drive, and then taking one of the occupants of the car to the dentist. At first there were eight occupants of the car, three on the rear seat, two seated on cushions on the floor, and three in the front seat. Mildred Pearlman was seated in the middle on the back seat. After driving for a while, one of the occupants was let out, thus leaving seven occupants at the time of the accident. Ford was driving west on Vermont avenue, and the Haller truck was being driven south on Forty-Third street. Just prior to the accident, the speed of the car was fixed by various witnesses at from 10 to 60 miles an hour. According to Ford, the driver, he had been going about 35 miles an hour, but slowed down to not much over 10 miles an hour as he approached the intersection. When about 40 feet back, he blew his horn. When he got into the intersection, he saw the Haller truck a little back of the intersection. The Haller truck was coming fairly fast. As he entered the intersection, he blew his horn, and first thought that the truck was going to stop. When he saw the truck was coming on, he swerved in order to let it pass him. The truck's left fender struck his right fender toward the rear. His car went to the southwest corner, hit a telephone pole, a tree, and a fire plug, and then turned over on the right side. The truck stopped about 10 feet in front of him further west. According to the driver of the truck, he was going about 15 or 20 miles an hour. He saw the car when 50 or 55 feet from the intersection. At first he put on his brake, and then released the brake in order to make a right-hand turn. He did not know whether there were any skid marks from the truck on Forty-Third street. When he first saw the Packard it was going from 50 to 55 miles an hour, but he could not say whether it slowed down any or not. He did not blow his horn as he entered the intersection. Other witnesses saw the skid marks on Forty-Third street for a distance of several feet. From the foregoing statement it is apparent that there was sufficient evidence of negligence on the part of both defendants to take the case to the jury and sustain the verdict.

It is insisted on behalf of appellant Haller that the court erred in not instructing the jury to find for her, if they believed from the evidence that the negligence of the driver of the automobile was the sole cause of the accident. It is true that the negligence of the driver of an automobile cannot be imputed to a guest, and will not prevent the guest's recovery against another, unless the driver's negligence was the sole cause of the collision, and we have approved instructions to that effect. Consolidated Coach Corporation v. Hopkins' Adm'r, 238 Ky. 136, 37 S.W.2d 1; Hunt-Forbes Construction Co. v. Jordan's Adm'x, 250 Ky. 455, 63 S.W.2d 501. Doubtless, if the court had instructed on imputed negligence, an instruction which it is claimed should have been given, would have been proper, but the court did not instruct on that subject, and the general instructions offered by appellant Haller defining the duties of the driver of the automobile did not cover the subject or even suggest the necessity of an appropriate instruction. Aside from this, the instruction given by the court set out the duties of the driver of the truck, and told the jury in substance that, if they believed from the evidence that he failed in the performance of any one of those duties, and that such failure, if any, was the proximate cause of the collision, then the law was for plaintiff as against Gertrude Haller, and the jury should so find. The jury were also told that,...