Harris v. Morris

• Decision Date: 19 June 1953
• Parties: HARRIS v. MORRIS.
• Court: United States State Supreme Court — District of Kentucky

Page 469

259 S.W.2d 469

HARRIS v. MORRIS.

Court of Appeals of Kentucky.

June 19, 1953.

Garland R. Hubbard, Louisville, for appellant.

R. I. McIntosh, Woodward, Hobson & Fulton, Louisville, for appellee.

STEWART, Justice.

Thomas L. Harris, administrator of the estate of Helen Harris, his deceased daughter, filed this action against Marvin Morris to recover $50,000 damages for the death of the daughter. The petition alleged negligence generally. Morris answered by pleading contributory negligence and, in addition, by averring that the daughter's death was caused solely by the negligence of the operator of the bicycle on which she was riding when she received injuries which caused her death. The jury found for Morris and this appeal is from the judgment entered thereon.

Appellant alleges prejudicial errors were committed by the lower court (1) in submitting to the jury 'Instruction 2' and 'Instruction 3'; and (2) in refusing to give certain offered instructions, which we shall specifically mention hereinafter. Appellee maintains he was entitled to a directed verdict, and we shall consider this contention as the outset.

Helen Harris, a girl thirteen and one-half years of age, while riding on the frame between the handle bars and the seat of a bicycle operated by William Vormbrock, a fifteen-year-old boy, was fatally injured on May 4, 1950, when the bicycle was struck by an automobile driven by appellee, Morris. The collision occurred about 9:30 p. m. in the intersection of Sixth Street and Ashland Avenue in Louisville, and the place of the accident was near or just a little east of the middle of Sixth Street and eight or ten feet north of the south curb of Ashland Avenue. The Vormbrock boy was knocked a distance of fifteen feet, the girl was thrown down with great force on the pavement, and the right front headlight of appellee's car was demolished by the impact. Sixth Street is 38 1/2 feet wide and Ashland Avenue is 35 1/2 feet wide at the intersection. Ashland Avenue is a boulevard and traffic thereon has the right of way. A street light, burning on the northeast corner of the two thoroughfares, made visibility good at the site of the accident.

William Vormbrock, the operator of the bicycle which was struck, testified that he was going north on Sixth Street with the girl; that the automobile was traveling east on Ashland Avenue at the time of the collision; that he stopped ten to fifteen feet from the intersection at or near a stop sign to call back to a boy friend who was following him; that his view was unobstructed in his front and on both his sides and he looked up and down the avenue but saw no car coming; that he came into the intersection first and was about a fifth or a fourth of the way out in it when he saw the Morris car entering it; that appellee's car lights were dim; that he did not have any lights on his bicycle; that appellee's car was 'coming pretty fast' toward him but he thought it was going to stop before it hit him; and that, to employ his own words, 'I could not stop and was just paralyzed and I heard Helen scream and the tires skidding and we hit.' After the accident he said he looked and saw skid marks extending a distance of five feet from the back tires of appellee's car.

On cross-examination the Vormbrock boy admitted he signed a written statement after the accident and prior to the trial which contained, among other things, admissions to the effect that he did not stop at the intersection, that he did not see appellee's car until just before the collision, and that he heard the motor of the car before he started into the intersection. He said, however, that these declarations contained in the statement were not true when he made them. He also denied he told an officer at the scene of the collision that he did not know there was a boulevard stop at the intersection when the officer asked him how the accident had happened. Obviously this line of evidence tended to undermine young Vormbrock's credibility as a witness.

Dennis Dains, a sixteen-year-old companion of the Vormbrock boy on the occasion of the accident, was on Sixth Street approximately 150 feet south of its intersection with Ashland Avenue. He said he was entirely off his bicycle, tightening its handle bars with a pair of pliers, and he called to young Vormbrock who was then about fifty feet from the intersection and told him to go ahead. He said the next time he noticed the Vormbrock boy and girl was when his attention was attracted to them by the girl's scream, and then he saw that the Vormbrock boy 'had just started out in the intersection and the car was coming.' At that time he figured the car and the bicycle were something like four feet apart and he said they collided in a matter of four or five seconds. When asked about the speed of the Morris car, he replied that 'it must have been going fast.'

Appellee testified that as he approached the intersection 'there was a fellow coming out Sixth Street going north and he stopped and made a left turn in front of me.' He said he slowed up to let the driver of this car get out of the way and as this person turned to appellee's left and went west on the avenue the latter entered the intersection headed east. Meanwhile he said he fed gas to his car and sped up. He stated he was looking straight ahead when he saw the bicycle start into the intersection just about the time he was entering it. He then jammed his brakes, stopped as quickly as he could but he did not have time to swerve his car to his left. If the bicycle stopped before it moved into the intersection, he said it did so down Sixth Street at a point where he could not see it. According to him, his speed was from fifteen to twenty miles per hour and that of the bicycle from eight to ten miles per hour. He estimated his car was brought to a standstill within four or five feet after the collision. His lights were on dim when the accident occurred but they would reveal substantial objects a hundred feet ahead.

Wanda Morris, appellee's eleven-year-old daughter who was with him, testifying as to what she observed concerning the accident said: 'I saw something like the figure of a bike come out from behind the trees and I heard a crash * * *.' She said her father was driving 'very slow.'

It is appellee's position that there was no evidence or, at least, no more than a scintilla of evidence, that he was guilty of negligence and, therefore, the case should not have been submitted to the jury. Furthermore, he insists that the sole cause of the accident was the action of the Vormbrock boy in disregarding the boulevard stop sign and in riding the bicycle into the path of his car.

On the occasion of the accident, appellee was traveling on a supervior highway and such a motorist may assume, although not with impunity, that the operator of another vehicle about to enter his path of travel will yield to him. However, the duty to exercise reasonable care remains. Thomas v. Dahl, 293 Ky. 808, 170 S.W.2d 337; Adams v. Louisville Taxicab & Transfer Co., 307 Ky. 405, 211 S.W.2d 397. One operating an automobile on a public highway of any character is under an obligation to drive at a speed not excessive under the circumstances, to keep his car under reasonable control, and to maintain a lookout. Schechter v. Hann, 305 Ky. 794, 205 S.W.2d 690. He must also give, if necessary, timely warning of his approach. McCray v. Earls, 267 Ky. 89, 101 S.W.2d 192.

With the foregoing principles as a guide, we shall examine the proof to determine if there was evidence from which the jury could infer that the negligence, if any, of appellee was the proximate cause of the accident. Certain facts deserve special notice in this connection. It is uncontradicted that appellee's car struck the bicycle with such force that it tore off the right front headlight and hurtled the Vormbrock boy fifteen feet through the air. From these physical facts, aside from the testimony adduced herein, a jury...