Jones v. Gardner

• Decision Date: 25 February 1936
• Citation: 262 Ky. 812
• Parties: Jones v. Gardner.
• Court: United States State Supreme Court — District of Kentucky

262 Ky. 812

Jones v. Gardner.

Court of Appeals of Kentucky.

Decided February 25, 1936.

1. Negligence. — Last clear chance doctrine applies only where injured party has by his own negligence placed himself in position of peril and defendant has discovered or by exercise of ordinary care could have discovered his peril and have avoided injuring him.

2. Automobiles. — In action for injuries received by pedestrian struck by automobile while walking near left edge of highway, qualification of instruction on contributory negligence so as to submit question of last clear chance held properly refused.

3. New Trial. — Plaintiff who was inmate of insane asylum at time of trial held not entitled to new trial on ground of newly discovered evidence or on ground of surprise, where physician at asylum called by defendant testified that plaintiff was at that time able to testify, where such fact was discovered before trial closed.

4. New Trial. — New trial on ground of newly discovered evidence will be granted only where new facts are discovered after trial.

5. New Trial. — Party taken by surprise during trial must act promptly, and may not take chance of getting verdict, and then if he loses demand new trial.

6. Appeal and Error. — Alleged improper statements of counsel in opening statement held not reviewable, where not shown by bill of exceptions.

Appeal from Fayette Circuit Court.

JOSEPH J. BRADLEY and JOHN Y. BROWN for appellant.

HUFFAKER, HOGAN & BERRY, R.P. MOLONEY and NOLAN CARTER for appellee.

OPINION OF THE COURT BY CREAL, COMMISSIONER.

Affirming.

Meredith Jones, by his committee, Lilly Jones, instituted this action against John S. Gardner and Letitia Gardner, his wife, seeking to recover damages for personal injuries alleged to have been caused by the negligence of John S. Gardner in the operation of an automobile belonging to his wife and which he was operating as her agent and servant. However, when it was made to appear from the deposition of John S. Gardner, taken as if on cross-examination, that he was the owner of the automobile, the petition, upon motion of plaintiff, was dismissed as to Mrs. Gardner.

By answer, defendant made a general denial of the allegations of the petition with respect to negligence, and affirmatively pleaded contributory negligence upon the part of Meredith Jones.

Trial resulted in a verdict and judgment for defendant, and motion for new trial having been overruled, plaintiff is appealing.

The grounds urged for reversal in substance are: (1) That the court erred in refusing an instruction offered by plaintiff qualifying the instruction on contributory negligence and submitting the question of "last clear chance"; (2) that the court erred in not granting a new trial in order to let appellant present his testimony and to permit him to testify in his own behalf which he was prevented from doing by facts and circumstances appearing in motion and grounds for new trial and supporting affidavits; (3) that the attorney for the defense in his opening statement of the case made improper statements calculated to prejudice the minds of the jurors.

It will not be necessary to detail the evidence except in so far as it has a bearing on the points urged for reversal. The unfortunate accident out of which this litigation grew occurred on the Liberty pike in Fayette county. Meredith Jones and his brother, Everett Jones, were walking along the pike on the left side as they were traveling. Appellee in his automobile accompanied by Ferdinand Talbott, a colored boy, was traveling in the opposite direction. It was dark and appellee and other motorists passing along the highway had their lights on. The paved portion of Liberty pike at and near the place where the accident occurred is 16 feet in width with a gravel shoulder on each side varying in width from 1 1/2 to 2 feet, and these were bordered by earth covered with weeds and undergrowth.

Everett Jones testified that he was walking on the shoulder on the left side of the road; that his brother was walking abreast of him and about 18 or 20 inches over on the pavement; that he saw the lights of appellee's car as it approached them and if it had continued in the direction it was then going it would have safely passed them by, but as it neared, it turned back toward them and struck his brother.

According to the evidence of appellee he first saw Meredith Jones and his brother 600 or 800 feet ahead by the lights of another automobile, he was traveling at a rate of 20 or 25 miles an hour, and when he discovered them he slowed down and put his foot on the brake as he was descending a 4 or 5 per cent. grade. He next saw them about 250 feet ahead by the lights of his own automobile, one walking on the gravel shoulder and the other in the weeds, and every once in a while they would step up on the pavement. About the time he saw these men by the lights of his own automobile, another automobile came over the hill back of them and meeting him. He pulled over about 2 feet from the center of the pavement, keeping his eyes on the men and at the same time watching the car coming toward him; that the automobile meeting him pulled over to the opposite side with its right wheels on the shoulder, and he saw that all would pass safely if they continued in the same direction. When within about 50 feet of the pedestrians he saw they were keeping on the edge of the pike and he turned his attention more particularly to the automobile coming toward him. When he turned his attention to them again, they were 4 or 5 feet over on the paved road and about 4 feet ahead of the automobile. He then put on his brakes and cut his automobile slightly to the left in the short time he had, but the front bumper struck Meredith Jones. Further on in the direct examination he was asked, "As I understand you, he (referring to Meredith Jones) was walking along the edge of the pavement all the time until you were within 4 or 5 feet of him?" To which he replied, "Yes, he was headed to clear himself by 3 feet if he had continued the way he was headed."

The Talbott boy testified that when he first noticed the pedestrians they were about 300 feet ahead; that when Mr. Gardner got close to them he took his foot off the accelerator and slowed down to about 20 miles an hour; that after they met the other automobile, the...