Kelly v. Marshall's Adm'R.

• Decision Date: 14 June 1938
• Parties: Kelly et al. v. Marshall's Adm'r.
• Court: United States State Supreme Court — District of Kentucky

274 Ky. 666

Kelly et al. v. Marshall's Adm'r.

Court of Appeals of Kentucky.

Decided June 14, 1938.

1. Automobiles. — In action for death of nine year old boy allegedly struck by taxi, where evidence was conflicting as to place on

street where accident occurred, rate of speed of taxi, question whether boy jumped against side of taxi from a moving wagon in which he was riding or whether he was walking or running in the street or attempting to cross it when struck, and as to whether taxi driver negligently failed to sound horn, negligence of taxi driver and contributory negligence of boy were questions for jury.

2. Automobiles. — In action against driver and owner of taxi for death of boy who was either struck by taxi while walking in the street or jumped into side of taxi from a moving wagon, instruction stating that operator of a taxi should sound his horn whenever necessary was proper, although not qualified by stating that duty existed if operator saw or could have seen boy on street, where street was congested and boy, whether in street or in wagon, had his back toward taxi (Ky. Stats., sec. 2739g-28).

3. Automobiles. — It is the sole province of jury to determine from facts and circumstances whether operator of motor vehicle should have sounded horn or given other signal as required by statute (Ky. Stats., sec. 2739g-28).

4. Automobiles. — In action against owner and driver of taxi for death of boy allegedly struck by taxi on congested street, use of words "whenever necessary" instead of words "if necessary" in instruction stating that operator of a taxi should sound his horn "whenever necessary" was not error, since word "whenever" is a synonym of word "if" (Ky. Stats., sec. 2739g-28).

5. Automobiles. — In action against owner and driver of taxi for death of boy allegedly struck by taxi in business and residence portion of a busy street, court properly instructed that operation of taxi at a greater speed than 15 or 20 miles an hour under the circumstances would be negligence (Ky. Stats., sec. 2739g-51).

6. Automobiles. — Operation of a taxi or motor vehicle of like character in excess of 20 miles per hour in residence portion of city is prima facie evidence of negligence or violation of speed limit (Ky. Stats., sec. 2739g-51).

7. Automobiles. — A taxi driver driving along business and residence portion of busy city street on Saturday had duty to anticipate pedestrians crossing or attempting to cross street.

8. Appeal and Error; Automobiles. — In action against owner and driver of taxi for death of boy allegedly struck by taxi, where driver claimed that boy had been sitting in rear of an approaching wagon with his back to taxi, and that he suddenly jumped against side of taxi, instruction that jury should find for defendants if boy went into street from behind an obstruction or jumped so close to taxi that driver could not avoid injuring boy was proper and was not prejudicial to defendants, even if erroneous.

9. Automobiles. — In action against driver and owner of taxi for death of boy allegedly struck by taxi, where plaintiff's evidence showed that boy was in street in plain sight of driver of taxi which was approaching at an unreasonable rate of speed and that driver gave no warning and did not slacken speed, instruction authorizing jury to find for plaintiff under the last clear chance doctrine was proper.

10. Continuance. — The trial court did not abuse its discretion in refusing continuance in wrongful death action because of absence of an eight year old witness, where affidavit of witness was read to jury as his deposition (Civil Code of Practice, sec. 315).

Appeal from Whitley Circuit Court.

TYE, SILER, GILLIS & SILER and R.W. KEENON for appellants.

R.C. BROWNING and J.B. JOHNSON for appellee.

OPINION OF THE COURT BY JUDGE BAIRD.

Affirming.

C.M. Kelly and James Offutt appeal from a joint and several judgment, rendered against them in the Whitley circuit court on the 2nd day of February, 1937, for $8,000 in damages for the negligent killing of Andrew Marshall, deceased. By their motion and grounds for a new trial they complain of fourteen alleged errors, but counsel virtually waives all, except the following: (1) The court erred in instructing the jury; (2) in admitting incompetent evidence; (3) in refusing to continue the case because of the absence of the witness, Arnold Stewart; and (4) that the verdict was against the weight of the evidence and not supported by the law.

A discussion of these alleged errors, 1, 2 and 4, requires a statement of the material parts of the evidence developed upon the trial. Appellee's cause of action is based upon the alleged general negligence of James Offutt, the agent and servant of C.M. Kelly, who was operating a taxi belonging to Kelly that caused the death of Andrew Marshal, a boy, nine years of age. Appellants, in answering denied the material allegations of the petition, and by separate paragraphs alleged: (1) That Marshall's death was caused by his contributory negligence, and (2) they further alleged that Offutt, the agent, was operating at the time of the accident the car in a prudent and careful manner, and while doing so, Andrew Marshall ran into and against the car which resulted in his death; that his death so far as appellants were concerned was unavoidable. The allegations of the answer by reply were denied. On these issues the case was tried and the proof heard by the court and jury.

On Saturday, September 12th, 1936, between nine and ten o'clock in the morning of that day, on Main Street, between the intersection of 17th and 18th Streets of South Corbin, a portion of the city of Corbin proper, Andrew Marshall was injured and killed by being struck by a taxi owned by appellant Kelly, and operated at the time by Offutt. The evidence establishing the liability for the injury of the boy is in conflict; the exact location of the street where he was injured and the time and place when struck by the taxi; the rate of the speed of the taxi at the time it injured the boy; the question whether the boy suddenly or unexpectedly jumped into the taxi from a moving wagon in which he was at the time riding; or whether he was walking or running in the street at the time or attempting to cross the street when struck, or whether Offutt, the operator of the taxi, negligently failed to give notice of his approach in the crowded street by the horn on his taxi, as well as the rate of speed that the taxi was running, or whether the accident was in the business or residence portion of the city, or in both, are in sharp dispute. The undisputed facts are, that Andrew Marshall in company with a neighbor boy, Arthur Smith, who was about ten years of age, at some point on 16th Street before reaching the 17th Street intersection, were riding in a coal wagon together, in charge of Taulbey Stewart who was traveling north on Main Street going toward Corbin proper. In front of Lawson's store on Main Street, Smith and Marshall dismounted from the wagon and went up in front of Neal's filling station and there obtained a drink of water. Smith remained at the station, but the Marshall boy left it and traveled upon the sidewalk toward Williamsburg. The Smith boy saw him last near a telephone pole up the street near Stanley's store. There were wagons and other vehicles parked on each side of the street near Stanley's store. Smith did not see the taxi strike the boy, but saw the body of the boy after it was struck which was near to or even with the telephone pole where he had seen him last. Several witnesses were introduced by appellee who claimed to have seen the taxi strike the boy. In many respects their evidence fails to agree. Each of them stated that they saw the car when it struck Marshall; that he was in the street apparently attempting to cross it. All agree that Offutt, the driver of the taxi, did not sound his horn nor give any signal of his coming. He was running his taxi at a rate of speed ranging from 40 to 45 miles an hour, according to the testimony of several witnesses.

They also stated that the taxi skidded when it struck or was about to strike the boy, 45 feet or 15 steps; that the headlight of appellant's taxi struck the boy and was damaged and Marshall was knocked with great force by the moving car, causing his head to strike the handle of the door on the side of the car that Offutt was driving.

Alph Parker, a witness for appellee, stated that he was on the sidewalk west of the street going south about 50 or 60 feet from where the boy was struck by the taxi; that he saw the taxi coming north; that it was traveling from 40 to 45 miles an hour; that he saw the boy before he was struck; that he was 3 or 4 feet from the berm of the street near the taxi on the west side of the street going north. The boy was traveling on that side of the street. Appellants' taxi was traveling in the same direction of the boy and on the west or the wrong side of the street. There was sufficient space for the taxi to have passed the boy, had it remained on the right side of the street; that it was approaching the boy from his rear; that the accident occurred in front of Stanley's store; that the wagon and team were on the west side going north, and as the taxi approached the wagon and team, it cut around the corner on the right hand side and struck the boy; that the headlight on the taxi first struck the boy as he was going from the taxi and knocked him back against the handle of the door of the taxi. Wes Rogers stated that he was traveling along the sidewalk within 15 or 20 steps of the boy when he was struck; that the boy was on the west side of the street going north; that the taxi was on the same side going north, which was the wrong side for it to travel; that there was nothing on the paved road to prevent the taxi from traveling upon the right side or to cause him to move over on the west or left side; that the boy was struck in the back of the head by the...