Igo v. Smith

• Decision Date: 15 March 1940
• Citation: 138 S.W.2d 497,282 Ky. 336
• Parties: IGO et al. v. SMITH.
• Court: Kentucky Court of Appeals

138 S.W.2d 497

282 Ky. 336

IGO et al. v. SMITH.

Court of Appeals of Kentucky

March 15, 1940

Appeal from Circuit Court, Perry County; S. M. Ward, Judge.

Action by Taylor Smith against Arile Igo and others for injuries sustained by the plaintiff when struck by an automobile. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment reversed.

Keenon & Kessinger, of Lexington, for appellants.

J. B Eversole, of Hazard, for appellee.

MORRIS Commissioner.

Appellee was injured on the night of November 19, 1937, by being struck by a taxi owned by appellant and driven by Hubert Benton; these two with the "Igo Taxi" (trade name) were joined as defendants.

He asserts in the pleading that at the time mentioned he was walking along Highway No. 15, near Cornett Hill in Perry County, "on the left side of the highway facing the traffic, and that Hubert Benton came along *** driving the taxi going south, the same direction in which plaintiff was walking, and overtook and approached plaintiff from the rear," and in a reckless and negligent manner ran over and against plaintiff, knocking him down. The impact knocked him unconscious, "and left him on the highway with a broken jaw, teeth dislocated, leg broken between the knee and hip, and severely shocked and bruised him about the head and body."

His plea of general negligence was not transformed into special plea, by the descriptive words later used. He was taken to the hospital where he remained unconscious for some time; he says after his consciousness returned he suffered great pain he has been unable to walk; his injury was permanent; that his hospital and medical bills amounted to $550, for which he asked judgment, in addition to $10,000 for pain, suffering and permanent disability.

A denial, plea of contributory negligence, and reply to appellant's answer, completed the pleadings. Upon a hearing of the case a jury returned a verdict for plaintiff in the sum of $2,000; judgment was entered after a motion for a new trial was overruled, in conformity with the verdict, and appeal is prosecuted.

Numerous grounds were set out in support of the motion for a new trial, but on appeal counsel for appellant urges the following:

(a) The court erred in permitting witnesses to testify as to points and objects from and by means of a diagram drawn by plaintiff's counsel on the court room floor, and in admitting incompetent, and rejecting competent, evidence.

(b) The court erred in overruling defendant's motion for a peremptory instruction, made at the close of all evidence.

(c) The court erred in the giving of and refusal to give certain instructions.

(d) The verdict is against the law and evidence and is excessive, being the result of passion and prejudice.

At the outset we must admit that the fact that a diagram was drawn on the floor, and to which witnesses referred in pointing out objects, distances and the lay of the road, with the usual expressions, "here" and "there," and "right about here," makes it difficult for us to grasp the situation. Again, the witnesses testified in such general and uncertain manner, as to increase, rather than eliminate, the confusion.

After piecing together the portions of testimony of various witnesses, we are venturing to say that the accident occurred somewhere on Cornett's hill, between the bottom of the hill where there is a state garage, and the top of the hill where there is a filling station. Between the two points the highway is straight for a distance of 300 yards; the highway is concrete, 24 feet wide, the shoulders at some points being 2 feet, and at others a lesser width.

Appellee lived at the lower end of the hill near the state garage, which he pointed out as he did the Cornett house, and said "here" and "there," marking these and other objects with a piece of crayon, and similarly illustrating the way he came from his home and got on the highway. He was operator of a motor in a mine, working on a night shift. He had been to Glowmar during the day and came home around two o'clock; laid down and slept until about 6:30, when he started up the hill "to the bridge to get some groceries." As he went up the highway, he says he walked on the left side of the marked center line of the highway. He does not say how far up the hill he had gotten, "walking along singing," when a car passed him going toward Hazard, and "somewhere around a minute something hit me in the back, and that was all I knowed." He described his injuries, and said that by reason of same he had been unable to work up to the time of the trial (May 13, 1938) and because of injury to his teeth and "no-account leg, he could not pass the examination."

On cross-examination he said he was "doing some farm work on two and a half acres, but I can't work much." He denied that he had taken a drink of whiskey during the day, but up to two o'clock had taken, perhaps, as many as six bottles of beer, though he says he was sober. He also knew that there was considerable travel over the highway. He admits that the shoulders of the highway were about 2 feet wide, but he says he was walking on the concrete on the left side. He did not know what struck him, or, if it were an automobile, who was driving; he later learned that Hubert Benton was driving it. There is no dispute on this point.

Fred Davis lived in the neighborhood of appellee. On the day of the accident he was down near the garage, and had started up the hill; he describes the accident as he saw it: "Well, I seen a car go around another car, which was going down the road, and it was on the left side of the road going up, and as he went around there I seen him hit Taylor Smith, but I didn't know at the time who it was." He did not go to the scene of the accident, but says; "he was picked up before I could even get there."

He later went to the scene of the accident. He testified: "Well, where he was hit, from where he was hit was about 2 feet from the center of the road and it went about 12 to 15 feet I guess, to the left, on the left-hand side as you go up, and this blood was strung along the side or the middle of the left-hand side of the line."

On cross-examination this witness said he was "at the garage, and about 300 feet or better" from the point where the accident happened. He also said it was dark. He saw the car which had passed Smith going north, and then saw the other car going south, and which was the one which struck Smith. He saw Smith about 2 feet from the center of the road. The car going north had its lights burning. The driver of the Igo car was just pulling around this other car and ran into Smith. The Igo car, driven by Benton, was on its right side of the road. Witness was then asked: "How long had that car passed Mr. Smith before the accident?" He answered: "I don't know, it was dark after the first car passed; I don't know what happened after that." He says he didn't see Smith until the other car, which was coming up, hit him. "The other car that was coming down was on the right side. When he passed the fellow it was dark and when the other fellow's headlights hit him I could see and after the car hit him I don't know what happened."

He then says, though it is difficult to understand the situation: "This car that was coming down was aiming to turn over this hill that ran down in the bottom and he was aiming to turn out of the road so he had to pull over and so he had to or he passed him and went around him and the other car was setting still on the side of the road and he went around him. At the time he went around him he hit Taylor Smith." He further said: "The car coming down stopped between him and the point of the accident, over on the left side going up the road. The car that had passed Smith was turning into that side road down into the village." He then takes his crayon and illustrates by marks.

Karl Evans, witness for defendant, was the man in the other car. He was driving toward Hazard on Highway No. 15. He saw Smith before he was struck. He was going up the highway "all over it, first on one side and then on the other; staggering ever once in a while. When I saw him he acted like he had been drinking. I slowed up, and cut over on the shoulder of the highway. I pulled two wheels off the concrete over on the shoulder. I drove on a little piece where I was going to turn off. I didn't quite get to this other car, the taxi that was coming up the hill. I drove slowly. I stopped and stuck my head out of the window to see how he was going to get by this car, and the car hit him. I had only traveled 50 or 75 feet. I stopped on the right." He said the taxi going south was on its right side. When asked what he did after the taxi passed, he said: "Well, I stuck my head out the window and was watching the boy to see how he was going to get by, he kept bearing to the right by the side of the taxi that was coming up on him and I saw the car hit him and it knocked him over on the left side of the road. *** I got out and went back up there to him. By that time the boy had stopped there to see and I told them to come back *** that they had killed a man. They come back down there *** and we loaded him in the taxi and they brought him down to the hospital."

This witness when asked, "Which side of the road was he on when you first saw him?" replied, "His left side, headed So. *** Bearing back over to the right. The taxi was on its right side when it hit him."

Harold Dunnigan was in the Benton car. They passed another car just before the accident happened; it was headed toward Hazard. The taxi was on its right side, going twenty-five miles. He then saw Taylor Smith "at about the black line, right in the center of the road. He took a backward step into the car that was driven by...