Hughes' Adm'x v. Shouse

• Citation: 245 S.W.2d 940
• Parties: HUGHES' ADM'X v. SHOUSE et al.
• Decision Date: 01 February 1952
• Court: United States State Supreme Court (Kentucky)

Page 940

245 S.W.2d 940

HUGHES' ADM'X v. SHOUSE et al.

Court of Appeals of Kentucky.

Feb. 1, 1952.

C. L. Bell, Louisville, for appellant.

Harold Y. Saunders, Shelbyville, for appellees.

MILLIKEN, Justice.

This action was brought by Cora Mae Hughes Givens, administratrix of the estate of Rufus Hughes, deceased, for the death of Mr. Hughes who was struck by a car owned by Arthur C. Shouse, Sr., and driven by Arthur C. Shouse, Jr. The jury returned a verdict for the defendants, and the plaintiff has appealed. She urges as grounds for reversal of the judgment: (1) The verdict is contrary to the law and evidence; (2) the court should have peremptorily instructed for the plaintiff, except for the purpose of determining damages; (3) the verdict is the result of passion; and (4) the court erred when it did not give an instruction on last clear chance.

The accident occurred on October 8, 1949, at approximately 6:30 p. m. on U. S. Highway No. 60, several miles east of Shelbyville and near a point known as the Three-Mile Bridge. It is undisputed that Mr. Hughes was walking toward Shelbyville on or near the highway, and that Arthur Shouse, Jr., was driving alone in the same direction. It was almost dark and the cars on the road had their lights on. At a point some 900 to 1,000 feet west of the bridge Mr. Hughes was struck by the Shouse car. He died five days later in a Louisville hospital as a result of the accident.

There was only one eyewitness to the accident, the driver of the car, Arthur Shouse, Jr. His version of it is undisputed. He stated that he had left home about 6:15 and was proceeding toward Shelbyville on U. S. 60 at a speed of about 40 or 45 miles per hour with his bright lights on. In five or ten minutes he reached the bridge. When asked to tell the jury about the accident, he said:

'Well, when I got across Three-Mile Bridge, you go up a slight incline going toward Shelbyville, when I got about middleways of the hill there was a line of traffic coming meeting me during a heavy--a big football game at Lexington, a lot of traffic on the road. I dimmed the lights and went on up the incline; I got about middleways of it, there was a man there and the instant I seen him I hit him. I don't know how he got there.

'Q. Had you any trouble with your vision up to that point seeing whether or not there were any obstructions on the highway? A. No, sir.

'Q. Were your lights burning brightly? A. No, sir, they was dimmed.

'Q. How far in advance could you see with your lights dimmed? A. I don't know exactly how far.

'Q. How fast were you traveling? A. Forty to forty-five miles an hour.'

Appellant's theory of the case is that under the version of the accident given by the appellee there should have been a peremptory instruction for her because it is the duty of the driver of...