Herndon v. Kentucky T. & T. Company

• Decision Date: 26 March 1926
• Citation: 214 Ky. 36
• Court: United States State Supreme Court — District of Kentucky
• Parties: Everlee Herndon v. Kentucky Traction & Terminal Company. Mary E. Clarke v. Kentucky Traction & Terminal Company. Sarah G. Clarke v. Kentucky Traction & Terminal Company. Carlotta Herndon v. Kentucky Traction & Terminal Company.

214 Ky. 36

Everlee Herndon v. Kentucky Traction & Terminal Company.

Mary E. Clarke v. Kentucky Traction & Terminal Company.

Sarah G. Clarke v. Kentucky Traction & Terminal Company.

Carlotta Herndon v. Kentucky Traction & Terminal Company.

Court of Appeals of Kentucky.

Decided March 26, 1926.

1. Trial — Trying Together Actions for Injuries in Same Accident to Four Occupants of Automobile Held Not Error. — Trying together, over objection, separate actions by each of four persons for injuries from collision of street car with automobile in which they were riding, held not error; difference in issues as to contributory negligence having been taken care of in instructions.

2. Street Railroads — Whether Bell of Street Car Striking Automobile was Rung, and Whether Occupants were Contributorily Negligent, Held for Jury. — In actions by occupants of automobile for injuries in collision with street car, whether street car bell was rung, and plaintiffs were contributorily negligent in failing to hear or heed it or see car, held for jury.

3. Negligence — Instruction that Negligence of Automobile Driver was Not Imputable to Guests Held Not Prejudicial to Them. — In actions by driver and other occupants of automobile for injuries in collision with street car, statement, in contributory negligence instruction, that negligence of driver was not imputable to her guests, was not prejudicial to guests.

4. Appeal and Error — Appellant, Not Asking More Particular Instruction on Contributory Negligence, Cannot Complain of Failure to Give Such Instruction. — In action by occupants of automobile for injuries in collision with street car, plaintiff offering no instruction defining what specific duties she was under and had failed to perform, cannot complain on appeal of court's failure to give such instruction in addition to usual abstract instruction on contributory negligence.

5. Trial — If Instructions in Common-Law Action are Correct, Party Desiring Further Instructions should Request them. — In common-law action, court need not give whole law of case, and, if instructions given are correct, party desiring further instructions must request them.

6. Appeal and Error — Trial — Instructions that Negligence of Automobile Driver was Not Imputable to Her Guests, and Giving of Two Instructions on Contributory Negligence, Held Not Erroneous Nor Prejudicial as to Negligence of Driver on Trial of Actions by Her and Guests. — In trial of actions by driver of automobile and her guests therein, for injuries in collision with street car, giving of instruction that driver's negligence, if any, was not imputable to her guests, and of two instructions on contributory negligence, held not erroneous nor prejudicial as to driver, as unduly emphasizing such phase of her case.

Appeals from Fayette Circuit Court.

R.W. KEENON and GEORGE C. WEBB for appellants.

WALLACE MUIR and ALLEN, BOTTS & DUNCAN for appellee.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Affirming.

These four cases are companion cases to that of Price v. Kentucky Traction & Terminal Company, 207 Ky. 332, 269 S.W. 303, where a statement of the facts out of which they arise may be found. Of the present appellants, Miss Carlotta Herndon and her sister, Miss Everlee Herndon, were the owners of the automobile in which Miss Price, Miss Woodruff and the appellants were riding at the time of the accident herein complained of. Miss Carlotta Herndon was driving the car. Miss Everlee Herndon and Miss Price were seated on the front seat with her, Miss Price being on the outside. Miss Woodruff and the appellants, the Misses Clarke, were seated on the rear seat, Miss Woodruff being on the left-hand side and Miss Mary Clarke being in the middle. The four above styled cases were tried together by the court below and the jury found a verdict in each case in favor of the appellee.

It is first insisted as grounds for reversal that the lower court erred in trying these four cases together over the objection of the appellants. The rule as to this proposition is well settled and is thus stated in Benge's Admr. v. Fouts, 163 Ky. 807, 174 S.W. 515:

"Ordinarily, where there are several actions brought by different plaintiffs against one defendant and the issues are the same in each action, the court may try them together, but where the issues in the several cases are such as must be tried by a jury, and there is objection from one of the parties and the circumstances are such that the trial of the cases together would tend to place the objecting party in a position not occupied by his adversaries, and that would probably give the latter an undue advantage in the trial, the court should not permit them to be tried together. Whether the cases should have been tried together was a matter in the discretion of the trial court, and such discretion should not be interfered with on appeal, unless it is clearly made to appear that the discretion was abused."

This rule was approved and followed in the case of Farrar v. Hank, 205 Ky. 89, 265 S.W. 487, wherein the authorities which have followed the Benge case are collected. This Farrar case was on this question very similar to the cases before us. There the driver of an automobile and two of her guests were injured in an automobile accident and their suits were consolidated for trial. This court held that the lower court committed no error in so doing. We said:

"The main issues as to whether defendant was negligent and caused the accident were precisely the same in each case, but the issues as to contributory negligence were different, since any such negligence by one of the plaintiffs was chargeable...