Howell v. Standard Oil Co.
| Decision Date | 13 May 1930 |
| Citation | 234 Ky. 347,28 S.W.2d 3 |
| Parties | HOWELL v. STANDARD OIL CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Shelby County.
Action by Bertha Howell against the Standard Oil Company. Judgment for defendant, and plaintiff appeals.
Reversed for a new trial.
Rose & Holladay, of Louisville, and Gilbert, Pickett & Matthews, of Shelbyville, for appellant.
Humphrey Crawford & Middleton, of Louisville, and Todd & Beard, of Shelbyville, for appellee.
Bertha Howell instituted an action against the Standard Oil Company to recover damages for personal injury alleged to have been caused by the negligence of defendant's servant in charge of a truck. The negligence was denied by the answer which attributed the injuries to the plaintiff's own negligence. A trial resulted in a verdict for the defendant, and a motion for a new trial was denied. The plaintiff appeals. The errors complained of are that the trial court should have granted a new trial upon the ground of newly discovered evidence; that the verdict was flagrantly against the evidence; and that an instruction embracing the doctrine of the last clear chance should have been given. These contentions will be discussed and determined in inverse order.
The appellant offered no instructions, but insists that the court should have instructed the jury under the humanitarian doctrine to the effect that if the plaintiff's peril was discovered in time, by the exercise of ordinary care, to have prevented her injury, it was the duty of defendant's agent to exercise such care for that purpose. Ross v Louisville Taxicab & Transfer Co., 202 Ky. 828, 261 S.W. 590. The case at bar arose from a collision between motor vehicles on the public highway. There was no opportunity to discover the peril of the plaintiff. She claimed that while sitting in her husband's automobile, which was stopped on the right side of the road, the defendant's truck came from the opposite side of the road directly in collision with the car in which she was sitting, and thereby inflicted injury upon her. The opposite theory that the truck was run into by the Howell automobile was maintained by the defendant. It was a case of two distinct theories, each supported by evidence, and there was nothing shown that called for the application of the doctrine of "the last clear chance." Peak v. Arnett (Ky.) 26 S.W.2d 1035, decided March 4, 1930; Lieberman v. McLaughlin (Ky.) 26 S.W.2d 753, decided March 4, 1930. Furthermore, the appellant offered no instruction presenting the point now advanced, and it was not incumbent upon the court in any event to instruct the jury on any such theory, in the absence of a request in writing so to do. Hatfield v. Payne, 195 Ky. 310, 242 S.W. 32; Fullenwider v. Brawner, 224 Ky. 274. 6 S.W.2d 264; Corlew's Adm'r v. Young, 216 Ky. 237, 287 S.W. 706; Louisville & N. R. Co. v. Jolly's Adm'r, 232 Ky. 702, 23 S.W.2d 564; Helge v. Babey, 228 Ky. 197, 14 S.W.2d 757.
Equally without merit is the contention that the verdict is flagrantly against the evidence. The testimony for the defendant, which the jury had a right to accept, tended to show that while the truck was standing upon its right side of the road, the car in which plaintiff was riding came over and collided with it. It is argued that the circumstances corroborate the plaintiff's theory and contradict the defendant's theory, but the circumstances of the accident are equivocal. Each of the colliding cars was injured about the left front wheel and fender. There is testimony that the cars were found after the collision on the plaintiff's side of the road, but the defendant's testimony tends to show that the truck, after the accident, was on the right side of the road with the front wheel turned slightly to the left and the steering apparatus injured, as a result of the impact. It will thus be seen that there was a direct conflict in the evidence and it was possible for the jury to find for either party, depending upon which testimony it accepted. The verdict was not flagrantly against the evidence. Appellant correctly states the rule which prevails under subsection 6, § 340 of the Civil Code, to the effect that the court will not set aside a verdict merely because it is against the preponderance or weight of the evidence, nor because of numerical superiority of witnesses, but only when the verdict is flagrantly and palpably against the evidence as a whole. Louisville & N. R. Co. v. Baker's Adm'r, 183 Ky. 795, 210 S.W. 674; Louisville & N. R. Co. v. Rowland, 227 Ky. 841, 14 S.W.2d 174; Louisville & N. R. Co. v. Curtis, 233 Ky. 276, 25 S.W.2d 398; Commonwealth Life Ins. Co. v. Pendleton, 231 Ky. 591, 21 S.W.2d 985.
The main insistence of appellant is that a new trial should have been granted because of newly discovered evidence. At the trial, the plaintiff and her mother testified to the effect that the truck came across the road and struck the automobile while it was standing near the margin of the road on the right side. This testimony was consistent with the circumstances adduced, but it was squarely contradicted by the testimony of the driver of the truck. Subsequent to the trial term of court a supplemental motion and grounds for a new trial was filed relying upon newly discovered evidence consisting of the testimony of four newly found witnesses. One was a mechanic who, after the accident, had examined the automobile in which plaintiff was riding, and his proposed testimony concerned the marks of the collision on the automobile. Another affidavit was by W. P. Ellis, whose wife testified at the trial and who came upon the scene of the accident shortly thereafter. His affidavit merely described the condition of both cars and referred to an admission of the truck driver to the effect that he struck the Howell car on the wrong side of the road and that it was his fault. The other witnesses were Corinne Capito and John Capito, who stated in their affidavits that they lived at Bethlehem in Henry county, Ky. were following immediately behind the Howell car and observed the accident. Both stated that the Howell car was on the extreme right side of the road as it was going towards Shelbyville, and that the truck pulled diagonally across the road and ran directly into the Howell car; that the driver admitted it was his fault; and that after the accident was over the tracks of the truck were plainly visible in the tar surface entirely across the road. It will be recalled that the testimony of the driver of the truck and that of the appellant and her mother were in sharp conflict. The appellant and her witness were both materially interested, but so far as the record shows these newly found witnesses were disinterested. If it be said that the testimony was cumulative, it was yet of such a decisive character that it must have had a material bearing on the issue and...
To continue reading
Request your trial