Jones' Adm'x v. May

• Decision Date: 20 May 1949
• Parties: JONES' ADM'X v. MAY et al.
• Court: Kentucky Court of Appeals

221 S.W.2d 617

310 Ky. 706

JONES' ADM'X v. MAY et al.

Court of Appeals of Kentucky

May 20, 1949

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division; J. Ward Lehigh, Judge.

Action for wrongful death by Lucille Jones as administratrix of the estate of Henry Jones, deceased, against George W. May and others. From a judgment for defendants on a directed verdict at second trial, the plaintiff appeals.

Judgment reversed and court directed to reinstate verdict for plaintiff at first trial, and to enter judgment thereon.

William Mellor, Louisville, Charles Leibson, Louisville, for appellant.

L. R Curtis, Louisville, for appellees.

LATIMER Justice.

This action for wrongful death was instituted by Lucille Jones, widow of and administratrix of the estate of Henry Jones, deceased. The action grew out of an automobile collision between an automobile operated by Henry Jones deceased, and a funeral hearse of R. G. May Funeral Director Inc., which was operated by its employee, George W. May. There have been two trials. At the first trial the jury awarded $5,000. Motion and grounds for new trial having been filed, the court set aside the verdict and granted a new trial. Later plaintiff filed motion to set aside the order granting the defendant a new trial, and in overruling that motion the court said: 'The court being of the opinion that it erred in refusing to peremptorily instruct the jury at the conclusion of all the evidence in this case; and that the verdict of the jury is flagrantly contrary to the weight of evidence, and particularly to the medical evidence bearing upon the cause of death; and that the verdict is not sustained by sufficient evidence, it is ordered by the court that the plaintiff's motion to set aside the order of February 20, 1948 granting the defendant a new trial, is overruled to which the plaintiff by counsel excepts.'

At the conclusion of all the evidence at the second trial, the court directed verdict for the defendant. The administratrix appeals and asks that the directed verdict at the second trial be set aside and that the verdict of the first trial be reinstated and judgment entered thereon.

Appellant is here insisting, first, that there was ample evidence to take the cause to the jury. Appellee insists there was not. We shall look at the evidence from two angles, first, the facts surrounding the accident and, second, the testimony as to the cause of the death of Henry Jones.

We direct our attention first to the facts surrounding the accident. Henry Jones was operating his automobile eastwardly on Chestnut Street. The funeral car of appellee was traveling south on 28th Street. Chestnut Street is a boulevard. There was testimony that the funeral hearse failed to make the boulevard stop before entering Chestnut Street. This, however, was contradicted by witnesses for appellee. The front end of the hearse struck the left rear fender of Jones' car. The impact knocked the rear end of Jones' car to its right about 8 or 10 feet. Certainly from the conflicting testimony there was ample evidence to take the matter to the jury as to whose negligence was the proximate cause of the injury.

We next direct our attention to the testimony as to the cause of Jones' death, which the court held was insufficient to take the cause to the jury. The force of the collision caused Jones' head to hit the side of the left window frame of the automobile. He received a slight cut behind his left ear and a bump on the left side of his head. According to the investigating police officer he acted somewhat dazed. The officer wanted to take Jones to the hospital but Jones did not think he was hurt seriously and thought he would soon be all right. He went home in about two hours after the accident complaining that his head was hurting. The following morning the left side of his face was swollen and his head continued to hurt. However, he continued work until Christmas Eve, which was 36 days after the accident. This was the last he ever worked. Some time after Christmas his condition seemed to grow worse until it reached the place that he would fall with dizziness and become unconscious. Dr. Carter was called to attend him. After examination and obtaining history of the case, Dr. Carter concluded that Jones was suffering from traumatic epilepsy. He treated him accordingly and apparently Jones responded to the treatment, but not making the recovery anticipated the doctor made further investigation and learned that some 10 or 12 years prior to the accident Jones had had syphilis. A Kahn test was made which showed positive. According to the history of the case, a sore had appeared but after treatment had disappeared. Jones said he had not been bothered since. Dr. Carter stated that the reason the Kahn test showed positive was because Jones and not received sufficient treatment to show a negative test, but that the symptoms as manifest in no way were indicative that Jones condition was a result of this earlier syphilis. Treatment was given for the syphilitic condition until along in August. The patient gradually became worse. His wife inquired of the doctor if it would be all right to take Jones to the General Hospital as it was becoming more difficult for her to care for him. Pursuant to the doctor's advice, Jones was removed to the General Hospital.

The evidence of...